Columbia Law Reivew

March, 1990

Erik S. Jaffe
Copyright © 1990 by the Directors of the Columbia Law Revision Association,Inc.

Rapid advances in biotechnology and medical science are creating new uses for many bodily tissues that were once thought to have no value beyond their original functions. Bodily tissues that once would have been buried at death are now valuable for use in transplantation, research, education and commercial endeavors. Although this has always been true to a limited extent (for example, the use of cadavers for medical education), the expanding range of possible uses has forced a fundamental reconsideration of the legal nature of the human body. This is especially true given the recent possibilities for commercializing human biological material. In order to respond to this new biotechnological revolution, society and the legal system will have to grapple anew with questions such as whether property [FN1] rights can exist in a human body (or parts thereof) and, if so, in whom do such rights vest. The answers to such questions will in turn have repercussions on how society conceptualizes such constitutionally important terms as "person" and "property." If the body is property then it may come under the ambit of the specific constitutional protections afforded to property in the fifth and fourteenth amendments. The difficulties inherent in an altered perspective on the body can be seen in the narrow but illustrative example of state laws which permit coroners to remove corneas and other bodily tissues for transplantation under certain circumstances without the prior consent of the deceased or next of kin.

This Note argues than property rights do exist in the human body and its constituent parts. Characterizing the body as property leads to the conclusion that laws authorizing the removal of bodily tissues without the consent of the "owner" must be consistent with the due process and the takings clauses of the fifth and fourteenth amendments. Specifically, this Note argues that laws authorizing coroners to remove bodily tissues from a cadaver without the consent of either the deceased or the next of kin, and without reasonable efforts to obtain such consent, violate due process and constitute a taking without just compensation.

*529 Part I reviews the social and legal background of organ donation, the evolution of the Uniform Anatomical Gift Act (UAGA), [FN3] and some recent constitutional challenges to nonconsensual appropriations of bodily tissue. Part II discusses the nature of the interests that exist in the human body and its constituent parts, and concludes that the body is property for purposes of the Constitution. Part III argues that the removal of bodily tissues without adequate notice and opportunity for objection by the next of kin violates the requirements of the due process clause. Part IV argues that, in the absence of just compensation, such removals run afoul of the takings clause.


The science of human organ transplantation has advanced considerably over the last 30 years. This has created a large unmet demand for transplantable organs. In an effort to increase the supply of such organs, all 50 states and the District of Columbia have adopted the UAGA, or some variant. The UAGA was designed to simplify the laws surrounding organ donation, to clarify which persons were authorized to grant consent for donation, and to define which circumstances required such consent. State laws that have gone the farthest in curtailing the requirements of consent prior to organ removal from the newly dead have occasionally come under attack by the next of kin. These attacks bring to the surface a number of issues surrounding the scope and nature of rights relative to the human body.

A. Technological Advance and the Uses for Human Tissue

Using the human body, or portions thereof, after the original *530 "user" is finished with it is not a new phenomenon. Cadavers have long been used for the advancement of medical and scientific knowledge, [FN5] and occasionally for commercial display. [FN6] The use of human hair for the manufacture of wigs also has a long history. [FN7] Rapid advances in the medical sciences beginning in the 1950s, and in genetic engineering since the 1970s, have dramatically increased the uses for and value of bodily tissues.

The first successful long-term transplantation of a human kidney took place in 1954. [FN8] In 1988 there were 9123 kidney transplant operations performed in the United States alone. [FN9] Many other organs and bodily tissues are also now transplanted, including the liver, heart, bone marrow, blood and blood components, corneal tissue, skin, nerves, hair and adrenal gland tissue. [FN10] Corneas, for example, can be transplanted into newborns who lack them at birth as well as into adults needing replacements. [FN11] With the development of new methods to *531 prevent the body's rejection of transplanted tissues, the possibilities for transplantation, as well as the number and success rate, are sure to increase.
In addition to the therapeutic uses of human tissue, the biotechnology revolution has opened up a host of potential research uses. Cell lines, developed from either healthy or cancerous human tissue, now serve as one of the most basic research tools. [FN13] Where the research is directed towards the development of drugs and other useful biological substances, the commercial value of human tissues greatly increases. [FN14] The potential market for cells and other by-products of human tissues is already valued in the billions of dollars, [FN15] and is likely to grow larger. The full impact of the biotechnological revolution is only beginning to be felt.
In the wake of the advances in science, the law has largely been left to play "catch up." Areas such as patent law, food and drug law, environmental law, family law and medical ethics have all had to make adjustments to the new scientific landscape. [FN17] The next section will focus *532 on one aspect of the law governing cadaveric organ donation. [FN18] This area presents the conflict between deeply felt concerns for the dead body and the continuing undersupply of human tissues needed to reduce death and suffering. As viewed against the backdrop of the increasingly commercialized fields of science and medicine, this conflict keenly demonstrates the need for an accommodation between old values and new technology.

B. Organ Procurement and the Uniform Anatomical Gift Act
As the success and utility of organ transplantation became apparent, society turned its attention to the problem of obtaining an adequate supply of organs. After many years of debate and considerable scholarly effort, [FN19] the National Conference of Commissioners on Uniform State Laws approved the Uniform Anatomical Gift Act in August 1968 ("UAGA(1968)"). [FN20] By 1973 all 50 states and the District of Columbia had adopted the Act or some variation. [FN21] In 1987, the National Conference approved an amended version of the UAGA (UAGA (1987)) [FN22] and a number of states subsequently have adopted it in whole or in part. [FN23] The 1968 Act remains the basic model, however, *533 and must be understood before considering the changes brought about by the 1987 Act.
The UAGA(1968) made a variety of advances in the law of organ donation, standardizing the process and removing some uncertainties about the scope of permissible donations. [FN24] Several of the more significant provisions expressly authorize donations for medical, research and educational purposes; [FN25] give priority to the wishes of the deceased; [FN26] and set out a prioritized list of the next of kin authorized to donate where the wishes of the deceased are unknown. [FN27] Under the 1968 Act it was assumed that absent explicit authorization for organ donation no organs could be removed for transplant. [FN28] The UAGA(1968) took no position on whether organ donation should be the subject of sales or *534 the exclusive result of gift giving. [FN29] The UAGA(1968) had no effect on the normal duties of the coroner, however, since the Act was explicitly made subject to the existing state autopsy laws. [FN30]
*535 The UAGA(1968) did not live up to its expectations for encouraging a sufficient supply of organs, however, and a chronic shortage of transplantable organs continued to exist. [FN31] One significant barrier was perceived to be the difficulty of obtaining consent for organ donation. [FN32] Although the requirement of consent was originally viewed as necessary to protect individual rights and to maintain public confidence in the developing practice of transplantation, it soon became a hindrance as the success of transplantation increased and the demand for organs grew. [FN33]
In an effort to overcome the problem of lack of consent where a healthy organ was available for transplant, two basic approaches were adopted: presumed consent and reasonable efforts to obtain consent. Each sought to strike a balance between society's need for organs and individuals' interests in their bodies or the bodies of their kin.
1. Presumed consent laws.--The basic feature of laws providing for presumed consent is that when a body is under the jurisdiction of the coroner, [FN34] she may authorize the removal of corneal tissues or pituitary glands where: (1) a request for such tissue for the purposes of transplant or therapy is made by an authorized recipient; (2) the removal would not interfere with the course of an autopsy or other investigation; (3) the removal would not alter the deceased's facial appearance; and (4) no objection by the deceased or the next of kin is known by the coroner. [FN35] This fourth element merely requires the absence of positive *536 knowledge of objection; it does not require the coroner to make any inquiry about the preferences of the deceased or her next of kin. [FN36] The laws also shield the coroner from liability in the event that after removal the family sues claiming that their consent was required. [FN37] A small number of states have also adopted laws that appear to make consent almost entirely irrelevant.
2. Reasonable efforts to obtain consent.--A second group of laws, including the UAGA(1987), limits the coroner's discretion by requiring *537 reasonable efforts to notify the appropriate persons and obtain their consent for donation. [FN39] Only after such efforts have failed may the coroner independently authorize the removal of organs or other tissues. While most of the previous group of presumed consent laws apply only to corneas or pituitaries, the UAGA(1987) made a significant break with the presumed consent laws by including all organs within its "reasonable efforts" provision. This may be the most significant variation between the UAGA(1987) and the UAGA(1968). [FN40] In addition, this group of laws usually contains a "required request" provision directing hospitals to inquire into the willingness of the next of kin to authorize a donation where the wishes of the deceased are unknown. [FN41]
*538 The largest group of states, however, has taken no action to reduce the consent requirement and still adheres to the original version of the UAGA, which does not permit the removal of organs for donation in the absence of authorized consent. [FN42]In most instances these states have adopted a required request rule as their sole means of coping with the difficulties of obtaining consent under the prior law. [FN43]
Those states that have adopted presumed consent laws present the greatest constitutional difficulties. Very little case law is available on this issue, however, because there have been only a handful of lawsuits challenging such laws.
C. Challenges to Presumed Consent
Three state courts have considered constitutional challenges to presumed consent laws. [FN44] In all three instances the statutes were upheld. The most thorough consideration given to this issue to date was by the Florida Supreme Court in State v. Powell[FN45] which involved a suit by the parents of an auto accident victim whose corneal tissue was removed by the medical examiner without obtaining consent. The lower court found the law unconstitutional on the grounds that it violated procedural and substantive due process, deprived the next of kin of equal protection and constituted a taking of private property for a nonpublic purpose. [FN46]
The Florida Supreme Court reversed. After noting the rational policy of the statute and the minor physical invasion of cornea removal,[FN47] the court held that there were no property rights in a dead body [FN48] and therefore no unconstitutional taking had occurred. The court further held that whatever common-law interests relative to burial may exist, these did not rise to the level of constitutionally protected liberty interests, and therefore did not raise due process concerns. [FN49] An extended dissent faulted the majority for taking such a narrow view of the rights of the next of kin. [FN50]
The other two cases took substantially the same approach.[FN51] The *540 common theme uniting these decisions is the conclusion that whatever rights may exist relative to the dead human body, such rights do not rise to the level of constitutionally protected interests. All three cases acknowledged the existence of a substantive "quasi-property" right relative to the body, but held that such rights were not property or liberty in the constitutional sense. No further consideration of the constitutional issues was undertaken. While recognizing that state law generally protected the next of kin's rights against invasion by third parties, none of the courts provided any analysis distinguishing government invasions from the otherwise general rule.[FN52]
The recent case of Moore v. Regents of the University of California [FN53] casts doubts upon the correctness of these decisions. John Moore, an individual suffering from hairy cell leukemia, had an operation at the UCLA Medical Center to remove his spleen.[FN54] Having removed it, the doctors, allegedly without Moore's informed consent, used it to produce a cell line that they later patented. Discovering this, Moore sued the doctors for (among other things) conversion. [FN55] Reversing the trial court's dismissal of the claim, the California Court of Appeals held that Moore had a property right in his spleen sufficient to sustain a cause of action for conversion. [FN56]
The rationale of the California Court of Appeals was that advances in science have so altered society's relationship with the human body that the legal system must recognize the change and adapt accordingly.
Until recently, the physical human body, as distinguished from *541 the mental and spiritual, was believed to have little value, other than as a source of labor. In recent history, we have seen the human body assume astonishing aspects of value. . . . For better or worse, we have irretrievably entered an age that requires examination of our understanding of the legal rights and relationships in the human body and the human cell. [FN57]
It went on to discuss the different rights recognized in the body and its separated parts, distinguishing the various limitations of those rights as reflecting "public health concerns, rather than a legislative policy against a property interest in a living body." [FN58] Drawing upon a broad spectrum of cases involving rights relative to the body, the court held that the various "rights of dominion" recognized over one's body "are so akin to property interests that it would be a subterfuge to call them something else." [FN59]
The one dissenting justice took the position that human body parts were nowhere to be found in the California statute, and found too few similarities to some of the more traditionally recognized items of property such as household furniture, evidences of debt or the gizzards of domestic poultry. [FN60]In concluding his discussion of this issue, the justice noted his reluctance "to extend the constitutionally sanctified right of property . . . to the refuse found on the floor of the barbershop or nail salon, in the hospital bedpan, or in the operating room receptacle." [FN61]
The particular substantive rights considered in Moore were similar to those recognized by the Florida, Michigan and Georgia courts, but *542 the Moore court's willingness to attach the label "property" to those rights suggests the need for closer analysis.


There are many rights that exist relative to the body. Some rights date back to early common-law rules against physical invasions, others are of more recent statutory origin. For constitutional purposes it is important to differentiate between property and liberty because the type of protection afforded depends upon which category of rights is involved. [FN63] If one looks to the method the Supreme Court uses to categorize rights, one concludes that, taken together, the rights existing in the body may be considered property rights. Since property for the purposes of the due process clause may differ from property for the purposes of the takings clause, the two will be considered separately.
The various rights that exist relative to the body will initially be catalogued, focusing on the substance of the rights that exist rather than what name attaches. [FN64]Two ancillary questions should be kept in mind during the course of discussion: to whom do these rights belong and against whom are they operative? The answers to these questions help when confronting the problems of who is a proper plaintiff for any taking or due process violation, and whether presumed consent laws eliminate or infringe upon existing property rights.[FN65]
*543 After analyzing the substance of these rights, the rights must be properly categorized. In doing this, a variety of contentious issues must be addressed such as what is property, how are property and liberty different and is there a difference in what is considered property for the due process clause as opposed to the takings clause.

A. Substantive Rights Existing Relative to the Body
A variety of rights relative to the body exist under state law. These can be broken down into several groups: (1) common-law rights involving burials and autopsies; (2) modern statutory rights concerning the dead body, most notably the UAGA and its variations; (3) rights involving parts of the body that are no longer connected to the whole body; and (4) rights concerning living bodies.
1. Common-Law Rights in Cadavers. -- The current rule at common law is that the next of kin have the right to possess the dead body for the purposes of burial or other disposition. [FN66] The right is typically characterized as one for possession of the cadaver, in undisturbed condition, and gives rise to actions such as wrongful autopsy and wrongful possession of the body.[FN67] Although there has been considerable dispute and evolution concerning its proper classification, this right has a long and historic pedigree. [FN68] Because the right to possession is limited to possession for the purpose of burial, many rights are excluded from the common-law formulation. For example, the next of kin are not allowed to sell the cadaver [FN69] and the right to dispose of one's own body by will is given only limited recognition. [FN70] Some of these common-law limitations have subsequently been changed by statute.[FN71]
*544 2. Statutory Rights in Cadavers. -- A more explicit source of rights in the body is the UAGA and its various state-law incarnations. Each of these laws provides that either the decedent or the next of kin has the right to direct the disposition of the cadaver, either to a donee planning some further use or for burial. At least one court has cited its state's Anatomical Gift Act as a source of property rights. [FN72]
One notable limitation on the rights in the dead body is the ban on the sale of organs established by the National Organ Transplant Act [FN73] and numerous state-law counterparts. [FN74] While these laws forbid a considerable portion of conceivable transactions in human bodily tissues, the exact scope of the ban is somewhat unclear and some transactions may be permissible. [FN75]
3. Rights in Separated Parts of the Body. -- There are a variety of commercial interests in body parts. These rights typically belong to the individual whose body parts are involved or to persons in subsequent possession of those parts upon transfer. Sperm, blood and hair may all be sold, [FN76] and are objects of the various other rights traditionally associated*545 with property. [FN77] Where someone particularly famous is involved--Elvis Presley, for example--a lock of hair may be a more valuable piece of property than a moderately priced Italian suit. [FN78] Likewise, there is little doubt that if the jawbone of Australopithecus Man were purloined from the museum where it lay, the cry of "THEFT!!" would not be slowed by an uncertainty over whether property was involved. The rights in these separate parts do not seem to depend on whether the original owner is still living, and thus are applicable to cadavers. [FN79]
The case of Moore v. Regents of the University of California, [FN80] involving rights in a severed body part, also provides a useful example of the extent of state-law rights in body parts. >[FN81]
4. Rights in the (Intact) Living Body. -- The rights to possess, use and exclude others from one's body while one is alive are all relatively evident. [FN82]The right to possess one's own body can be seen in the prohibition *546 of slavery and involuntary servitude,[FN83] and in the civil and criminal penalties for false imprisonment. [FN84] The right to use one's body is evident in the simple employment contract and in the reluctance to require specific performance when such contracts are breached. [FN85] Finally, the civil and criminal penalties for battery provide evidence of the right to exclude others. [FN86]
These rights, of course, are not absolute. Significant limitations exist on both the right to use and the right to exclude. Laws prohibiting prostitution and sodomy limit the right to "use" one's body as one sees fit. [FN87] Likewise, vaccination laws and forced caesareans, not to mention the entire debate surrounding abortion, present examples of limits on the right to exclude. [FN88]>
*547 B. Categorizing Bodily Tissues as Property Under the Federal Constitution
The rights that exist under state law must still be given a collective name in order to analyze them properly. Taken separately, some rights may bear a greater resemblance to liberty and others a greater resemblance to property. Taken together, however, the rights in the body form a substantial whole that results in something greater than the sum of each individually.
1. Defining Property Under the Due Process Clause. -- The basic approach for giving content to the word "property" in the due process clause was set out by the Supreme Court in Board of Regents v. Roth. [FN89] Justice Stewart, writing for the majority, proclaimed that
[p]roperty interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-- rules or understandings that secure certain benefits and that support claims of entitlements to those benefits. [FN90]
While the actual substance of an individual's rights are determined by reference to such independent sources, the ultimate characterization of those rights as "property" is a matter of federal law. [FN91] This can be seen from the cases holding that a variety of public entitlements, such as welfare [FN92] or social security benefits, [FN93]which the state legal system might not formally characterize as property, are nonetheless "property" for the purposes of the due process clause. [FN94] No systematic method of classification for different rights has yet been expounded by the Supreme Court. The decided cases represent an ad hoc approach, labeling as property any sufficiently important interest recognized by *548 state law.[FN95]
For the observer searching for a method of analysis, two approaches present themselves. One possibility is an examination of the general notion of property under the common law as a background against which the Court can be presumed to operate. Although the federal definition is by no means limited to such a general notion--it in fact goes far beyond that notion [FN96]--it at least lends some historical continuity to the endeavor. The second approach, to be used in conjunction with the first, is reasoning by analogy. Looking at those interests which have been protected as property by the Court, one asks whether the rights in the body are sufficiently similar to warrant like treatment. This method allows for the more expansive interpretation of property given by the Supreme Court and covers those interests missed by the first method. [FN97]
a. Bundles and Twigs. -- In Anglo-American law the notion of property is most often understood to mean those rights that a person possesses relative to a thing. [FN98] Rather than being viewed as a unitary right, property is seen as a bundle of rights. [FN99] Some of the rights relative to *549 things that have been historically associated with property are the rights of possession, exclusion, use and disposition, the right to enjoy fruits or profits, and the right of destruction. [FN100] A person need not possess all of these rights relative to any given object in order to have property rights. In fact, the common law has consistently defined property as including such things as leaseholds, mineral rights and bailments.
The view of property as a bundle of discrete twigs creates a problem of perspective. Determining where the bundle ends and individual twigs begin can be a difficult task, especially because any given twig can invariably be subdivided further and thus portrayed as a bundle. [FN101] Professor Radin has labeled this the strategy of "conceptual severance. [FN102] The difficulty of pursuing this strategy is that any government action restricting the use of property would be converted into a complete destruction of some property right that could be conceptually severed from the larger bundle. [FN103] This would severely handicap the government in its performance of even rudimentary regulatory functions. A more realistic approach would define the proper bundle in a practical manner and not treat the Constitution as a logical syllogism.[FN104]
Property rights have never been viewed as absolute, however, and are subject to the implicit (and often explicit) limitation that they may not be exercised so as to interfere with another person's property rights. [FN105] Pursuant to this view, laws which limit the inappropriate use of property can be understood as either definitional, denying the presence of certain property twigs ex ante, or as justified under the police power, trumping rights which are otherwise present. It is well to consider this limitation on the concept itself when viewing the various restrictions placed on the rights in the human body.
In light of this first approach to defining property, the rights relative to the body should be characterized as property. Those rights include *550 the rights to use, possess, exclude, sell (at least under limited circumstances) and destroy (cremation). [FN106] The right to exclude is particularly important in this analysis since it consistently has been recognized as the central element of the modern notion of property. [FN107] This rather substantial bundle of rights, while falling short of full commercial ownership due to the limited right to sell, is thus consistent with a general common-law approach to defining property. [FN108]
*551 A common argument made against the view that one's body is property is that there is no general right to sell the body and therefore it lacks an essential attribute of property. While conceding that one does not need all twigs in order to have a property interest, some critics think that this particular twig is so important that its absence is sufficient to deny the label property to the remaining bundle. [FN109] This view is unwarranted, however, because there are acknowledged forms of property that cannot be sold.
The right to sell is not necessarily tied to the notion of property. The Supreme Court, in the case of Andrus v. Allard, [FN110] indirectly made this point by holding that a ban on the sale of eagle feathers lawfully acquired-- physical objects that are concededly the object of property rights--was not a taking of property under the fifth amendment. The Court noted that the owners of the feathers still possessed numerous other twigs in their bundle of rights and hence their property, though diminished in value, had not been taken. [FN111] Other items considered property under a basic common-law approach, but which are not alienable, include certain licenses, [FN112] drugs for restricted use [FN113] and, under some circumstances, leases.[FN114] While the common law certainly disfavors restraints on the alienation of property, the occasions where it tolerates such limitations are not viewed as a denial of the underlying property interest.
b. Birds of a Feather. -- The second method for identifying federally *552 defined property requires an examination of some additional interests held to constitute property. Due process jurisprudence recognizes certain property rights that are not viewed as property at common law. Government entitlements such as welfare and social security disability benefits have been held to be property for the purposes of due process. [FN115] This is so even though the individuals seeking hearings had at best uncertain claims to continued receipt and lacked a number of traditional twigs, such as the right to sell or transfer the entitlement or the right to pass it on through descent or devise. Combined with the additional conditions placed on continued possession of the entitlements (poverty or disability), the scope of the property rights dwindles further. Such rights are also intangible, and thus one step removed from the more common and traditional understanding of property as relating to a tangible res. [FN116]
Expectations of job tenure based upon custom [FN117]or state law allowing termination only "for cause [FN118] have also been held to constitute property for due process purposes. These rights are very similar in scope and nature to the rights to government entitlements. The inclusion of reasonable expectations, based not upon a state statute, but rather upon common practice or custom, as a source of property rights indicates that the notion of property is quite expansive. The reasonable expectation that the body is subject to the exclusive control of the individual or her next of kin may serve as a basis for calling the body property. While the state could certainly alter such expectations by passing an appropriate statute, the same is true of the more generally accepted bases of property rights, such as existing statutes and common law. Where the state undermines an individual's expectations only with respect to whether the state can control her body, but not with respect to her control as against third parties, a property right still should exist if the restrictions on state behavior towards property are to have any content at all. [FN119]
Finally, the Supreme Court has considered there to be a property right in something as limited as a possessory interest in chattels whose title was vested in a third party. In Fuentes v. Shevin, [FN120] the Court considered whether prejudgment replevin provisions in Florida and Pennsylvania violated the due process clause of the fourteenth amendment. The replevied goods included various household goods to which the appellants lacked full title. [FN121] In holding that even the limited right to *553 possession constituted "property," the Court stated that " t he Fourteenth Amendment's protection of 'property,' however, has never been interpreted to safeguard only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to 'any significant property interest,' . . . including statutory entitlements."[FN122]
When compared to the various interests that the Court has considered property, rights in the body stand up rather well. They relate to a tangible item, and while not including every twig of the conceivable property bundle, they include more twigs than some interests which have received protection. Additionally, these rights have been recognized at least as quasi-property under state law, unlike many of the now protected interests that would not have been called property of any type. Here the analogy to cadavers is quite strong because the right most consistently recognized by state courts is the next of kin's right to possession for the purpose of burial. The right to possession is one of the classic property interests, and thus meets the Court's criteria for protection.
c. Property or Liberty?. -- Viewing property rights in the body as resting initially with the living individual provides continuity in ownership and a larger conceptual framework from which to analyze the organ removal laws. This approach creates some difficulties, however, since many of the rights in a living body have long been viewed as liberty, not property. It would be anomalous for a liberty interest to suddenly transform into a property interest on the simple occasion of death. An explanation that accounts for the existence of both liberty and property interests in a live body is then needed in order to reconcile the change in the legal treatment of the body at death.
In disentangling the rights in the body, it is important to distinguish between the concepts of "person" and "thing." Liberty is a right persons have relative to themselves and property is a right they have relative to things. This distinction is not easy, however, because the problem of defining the concept of self has plagued philosophers for centuries. [FN123] A number of recent developments in the law, however, have made this task easier from the lawyer's, if not from the philosopher's, perspective. One of the most important developments reflecting on society's notion of a "person" has been the adoption of brain death rules by a majority of states. [FN124] When a person has irreversible *554 termination of brain function, that person is legally dead--the "person" no longer exists. The law thus views the primary defining characteristic of a person as the capacity (or at least the possibility, however remote) for mentation.[FN125] This approach provides a convenient line for separating persons and things, and thereby distinguishing self-reflecting personal rights (liberty) from rights relative to things (property). Harm to the thinking being infringes on a liberty, harm to the physical body infringes property.
At first glance, this approach may not seem wholly satisfactory. An assault on one's physical being, say a punch in the arm, has always been viewed as an infringement of a personal right, a battery. How can this be so if the person is defined as the thinking being rather than the physical one? The answer is that there are some physical objects that are so closely integrated with a person that an assault on the object is also an assault on the person. [FN126] The justification behind many personal torts is the effect they ultimately have upon the mind, or the "person," *555 within the physical body. [FN127] That some physical objects become the repositories of personal rights, as well as property rights, is not such an unusual concept; simply knocking a person's hat off, or a book from her hand can constitute a battery in addition to a trespass to chattels, even though her body itself remained untouched. It is the circumstances of an object's association with the underlying mental entity that determines whether personal rights are implicated. [FN128]
One primary distinction, therefore, that separates liberty from property is the degree of integration with the mental entity that is recognized as the person. Actions that harm the person in a relatively direct manner are thus viewed as also affecting personal rights. Actions which interfere with the person's relationship with a nonintegrated thing affect only property rights. A live body, integrated with the person, is an appropriate object of both property and liberty rights. A dead body, having been de-integrated from the person who once animated it, seems a more appropriate object of property rights alone rather than liberty.
Both the scope and nature of rights in the body often exceed (in the direction of being more traditionally property-like) the scope and nature of those rights that previously have been recognized as property for the purposes of due process. While the body may once have lacked the commercial characteristics often associated with property, changing circumstances are emphasizing these very characteristics. The Moore case sharply highlights the notion that one person's refuse heap is another person's goldmine. [FN129] As scientific advances lead to increased use of, and consequently demand for, human tissue, the body will continue to take on the functional characteristics of property. [FN130] It is this *556 change, coupled with the numerous property-like rights already existing relative to the body, that led the Moore court to find the existence of a property right. This reasoning applies equally well in the situation where the original "owner" has been separated from her body entirely. Given the importance of these rights and the wide scope given to the concept of property under the due process clause, the courts should acknowledge that the rights in the body constitute property. The property right would initially vest in the individual while alive, and pass either to a specific devisee or to the next of kin upon the individual's death.
2. Property Under the Takings Clause. -- An apparent difference exists between property for due process analysis and property for takings analysis. This difference runs roughly along the lines dividing the "new property" [FN131] (covered by the due process clause) from the more traditional common-law property (covered by both the due process and takings clauses). [FN132] Where "new property" rights, such as an entitlement to social security benefits, are involved, the government is free to terminate such future entitlements without compensation by changing the underlying statute which provides the initial right. [FN133] Where traditional property rights such as those in land are involved, the government's attempt to significantly alter the underlying right, even through an across-the-board change in the governing law, may require that compensation be paid. [FN134]
One possible explanation for the different treatment of the new property can be found in the standard set out by Roth for determining what constitutes property. There the Court indicated that while state law was one source of underlying property rights, it might not be the only one. [FN135] Thus, in situations which involve property under the takings *557 clause, some alternative source of substantive rights, such as common law, may be setting a floor below which even positive state law may not drop when altering the definition of property without paying for the change.[FN136] When looking at the "new property," no such alternative basis or floor can be found, and hence when the very statute that creates the property interest is substantively modified, no claim can be heard that something has been taken since that something no longer exists by definition.[FN137]
Another explanation of the apparent distinction is to hold a unified conception of property, [FN138] but to recognize a difference between the concept of a taking and a deprivation, the latter being a much broader notion. Thus, redefining the organic law that creates the property interest in the first place may constitute a deprivation, [FN139] but not a taking.[FN140] The other side of this distinction is that actions that are in *558 opposition to the generally applicable organic law will necessarily implicate property under the takings clause, even in cases of the "new property." For example, if the government passed a law that Mr. Smith may no longer receive his social security benefits, not because he failed to meet any of the statutory criteria, but merely because it wanted to give the money to some worthy public cause, presumably that would constitute a taking of Smith's property.
Perhaps the reason it is so infrequently recognized that the "new property" is also protected under the takings clause is that the government almost never seeks to deprive someone of benefits as against his rights. [FN141] Whenever this occurs unintentionally, benefits are restored as soon as it is discovered, hence no "taking" ever occurs. [FN142]
With these distinctions in mind, what remains is to decide whether the rights relative to the body can be classified as property for the takings clause. The state-law foundations of the rights in the body have already been discussed in the context of due process. If there is no difference in the property covered by the two clauses, then there is no need to go further. Alternatively, if the takings clause only applies to property with a deeper historical element providing its organic basis, the rights discussed earlier should be examined once more with a particular eye to traditional expectations, and then compared to property that has explicitly been covered by the takings clause.[FN143]
*559 The rights that exist relative to the body bear a strong resemblance to those rights traditionally categorized as property rights by the common law. This plays a somewhat greater role under the takings clause because entitlement-like rights are often treated with less solicitude in this context. The rights of possession, use, exclusion, destruction, profit (to a limited degree), disposition and a form of descent and devise all exist relative to the body. Also, a number of these rights have a strong common-law history, though under a different name than property, and thus in substance may be deserving of the higher level of protection that seems to be associated with common-law foundations.
One's body could also be analogized and compared to one's car, house or favorite set of eagle feathers, all of which are considered property under the takings clause. In Hodel v. Irving, [FN144] the removal of the right to pass on, through descent or devise, small undivided interests in Indian land was held to constitute a taking. If one views the property involved as the interest in the land itself, and all the rights associated with it, the decision makes little sense. If, however, one views the property interest at stake to be the right to pass on the undivided interest, and that right alone, then the government's action has destroyed that property in its entirety and the finding of a taking makes perfect sense. [FN145] Viewed this way, some very limited rights are being given property status, and the rights in the body would seem to be of no less significance. Further, the rights to the body are rights relative to a discrete, tangible object, and thus fall closer to the traditional property norm than the class of government entitlements discussed earlier. Additionally, because the "taking" involved in the presumed consent laws is against an otherwise general right, none of the conceptual difficulties involved in the repeal of government benefits are involved. A different case would be presented were a state to alter its laws to make organ removal permissible, even in the face of objections by the next of kin. [FN146] Such *560 an action would destroy the underlying substantive right, not merely alter the procedures for its exercise. In that case, the law would be evaluated according to the approach taken in Hodel v. Irving and a much closer examination of the strength of the common-law right to possession for burial would be required. [FN147]
As a third and complementary approach, a normative argument can be made for recognizing a property right in the body. As Professor Van Alstyne put it, "in certain situations a literal freedom of private property may be indispensable to each person's sense of self." [FN148] The laborious process of disentangling the body from the self should demonstrate that the body is deserving of the full protections of property, including the ability to direct its disposition upon death. [FN149]


Assuming that one's interests in nonintegrated [FN151] body parts constitute property rights for the purposes of procedural due process, are laws allowing their nonconsensual removal consistent with constitutional requirements. Due process has been characterized as "a principle basic to our society." [FN152] When the state acts to deprive a person of life, liberty, or property, the "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner."' [FN153] When evaluating presumed consent laws under the due process clause, three basic issues are raised: 1) Is the removal of organs state action? 2) Has there been a deprivation within the meaning of the fourteenth amendment? and 3) What process is due? [FN154]

A. Coroners as State Actors
Because this Note deals only with organ removals authorized by the coroner, the nature of the action turns in part on the status of the coroner. That the coroner is an agent of the state is not disputed. [FN155] The coroner's official powers are prescribed by state law and when authorizing organ removal the coroner acts in her official capacity. [FN156] The same would be true even if the coroner herself had not performed the removal, but had instead authorized a third party to do so. [FN157] In both cases, the individuals would be acting in a manner authorized by state law and thus fall within section 1983's requirement of action *562 "under color of" state law. [FN158]

B. Removal of Tissues as a Deprivation
When organs are removed prior to notification and without consent, a deprivation appears to have occurred. Whatever rights the deceased or the next of kin may have had in the organ are permanently destroyed. The action is also intentional: the coroner has made an affirmative decision to remove, or authorize the removal of the corneas. [FN159] Supreme Court cases considering the issue of deprivation have noted that even a temporary interference with property rights can amount to a deprivation. [FN160] Here, where the impact of the state interference with the property right is permanent and irreversible, a deprivation requiring the application of due process has occurred. [FN161]

C. What Process is Due
The Supreme Court set out a three part balancing test in Mathews v. Eldridge [FN162] to determine what process is due. [FN163]
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [FN164]
The choices to be compared by this test are that of no notice whatsoever under presumed consent, [FN165] a reasonable attempt to notify under *563 UAGA(1987) [FN166] and an absolute duty to notify under UAGA(1968). [FN167]
Before addressing the particular balancing test, since deprivations in these cases are pursuant to established state procedures, some form of predeprivation procedure is required. [FN168] The balancing test is useful for assessing the scope of that process, but it would appear settled that exclusive reliance on post-deprivation remedies is insufficient. [FN169]
1. Private interest affected by official action.--The interest at stake here is that of a property right [FN170] in the tissue to be removed. In the case of corneas, the physical amount taken is quite small. The magnitude of the invasion increases substantially, however, where visceral organs are involved. The degree of importance this right has to any given individual will vary. A religious individual who is opposed to the removal of bodily tissues on religious grounds will have a tremendous amount at *564 stake. [FN171] Alternatively, a person willing to donate anyway would arguably have very little at stake. Such a case by case assessment is unfit, however, for the formulation of a constitutional rule since individual valuations cannot be predicted ahead of time. A better way to assess the value of the interest at stake is to determine the strength of the right asserted as compared to other competing interests. In cases involving the termination of government benefits, the private interests involved are weak since in many of the cases the individual had only a conditional claim to the entitlement. In fact, in most of the cases, a hearing, while giving an opportunity to respond to the proposed government action, would probably not have much effect on the ultimate termination of benefits. [FN172] While the private interests at stake may seem strong from a social point of view, they are weak legally since the relevant state laws have sought to condition significantly their vindication. [FN173] In the case of bodily tissues, if the deceased or the next of kin are afforded the opportunity to refuse tissue donation, such a refusal serves as the final word. [FN174] Looked at from this perspective, the private interest at stake is much stronger.
Because organ donation is currently an absolute right, this case is different from Mathews and the cases applying its balancing test since *565 there the Court was dealing with rights that were far less firm. [FN175] The right to government benefits or to a job were clearly terminable under a variety of circumstances no matter how loud the plaintiff protested. Under those conditions, some form of subjective assessment of the strength of the plaintiff's interest was required. Here, where the plaintiff's interest is given decisive weight (assuming the plaintiff has an opportunity to assert her interest), the significance of this factor alone may be enough to justify at least a minimum of predeprivation process.
2. Risk of error and value of additional safeguards.--The risk of error in these cases is difficult to characterize. Assuming that the right to donate or to refuse belongs to the decedent or the next of kin, it could be maintained that any decision that denies them the opportunity to choose is in error. This would arguably be so even if their choice would have been in favor of donation. [FN176] To focus the competing interests, consider only those situations where donation would have been refused as constituting erroneous deprivations. [FN177] Different surveys have been conducted over the years to determine the percentage of people willing to donate their organs. They indicate that the overall chance is high that the coroner's decision to remove organs will conflict with the wishes of the decedent or the next of kin. These surveys discovered that approximately 70% of Americans support organ donation. [FN178] When asked about specific organs, however, the percentage drops off significantly. [FN179] This latter fact, coupled with the low percentage of Americans who fill out donor cards or authorize donation on the back of their licenses [FN180] casts considerable doubt on figures used by those in favor of opt-out laws. Studies of persons asked if they would donate the organs of a deceased *566 relative yield similarly low figures. [FN181]
An extremely conservative estimate of 20% as the number who would refuse to donate if asked still leaves a very significant possibility of error. [FN182] Given the permanent nature of these deprivations, and therefore the lack of opportunity to redress errors post-deprivation, this factor weighs heavily in favor of some sort of predeprivation notice and opportunity to respond. [FN183] The second half of this factor is the probable value of any additional procedural safeguards. A somewhat uncertain result occurs under the UAGA (1987) which requires reasonable efforts to notify, and takes into account the life of the organ. [FN184] Assuming that the next of kin could be contacted in even half of the cases and only 20% of those reached refuse, a 50% reduction in the error rate can be achieved. This is certainly significant, especially given the minimal effect on government interests. [FN185] An absolute requirement of consent would obviously eliminate the error rate entirely, but the costs begin to rise substantially. Under this approach, even organs that would have been donated may not be taken since they cannot be identified ex ante.
3. Government interest served by lesser procedures.--The initial interest to be considered is the value to the government of having organs, such as corneas, available for transplant and therapy. At the individual human level this interest translates into saving many patients from blindness, and death in the case of vital organs, to the extent that these laws increase the number of available organs. Using the UAGA procedure of reasonable efforts to notify, this interest will only be affected to a minimal degree. When efforts to notify the next of kin are unsuccessful, the government may still remove corneas. Where the next of kin are contacted and agree to donation, again the government loses nothing.
Although the procedures required may add a limited delay, because the reasonableness of the effort is defined in relation to the useful life of the tissue, the government's interest in not wasting useful tissues is safeguarded. Only when the next of kin refuse is the government's *567 interest in corneas at issue. Even this conflict is a false one, however. Given the government's support of the final authority of the next of kin's wishes where known, it could be argued that it has no interest in taking bodily tissues against the next of kin's will. [FN186]
Fiscal and administrative burdens are also to be considered as part of the government's interest. The costs created by the alternative procedures themselves are minimal. A prompt phone call, made earlier rather than later, and the additional time taken by personnel are the only costs. [FN187]
Since these steps would be taken eventually in order to notify the next of kin of the death, requiring the steps to be taken sooner would probably not impose significant additional costs. In many instances, the efforts required may be no more than going out to the waiting room to ask a relative who is already present, but has not thought to take affirmative steps to make her desires known. Balancing the significant private interests at stake, the nature of the right as it now stands, and the minimal government interest in having no procedures whatsoever, a reasonable efforts requirement should be required to meet the values embodied in the due process clause. Recognizing that a valid interest is at stake and the chance for error significant, it would reduce the due process clause to a mere platitude to claim that no process was due under these circumstances.


The fifth amendment provides that "nor shall private property be taken for public use, without just compensation." [FN189] This clause is made applicable to the states through the due process clause of the fourteenth amendment. [FN190] The takings clause has been the subject of much attention in recent years, with several major cases portending new directions in takings clause jurisprudence. [FN191] Even these recent cases, however, start from the basic assumption that the purpose of the *568 takings clause is to prevent the imposition of costs on the few which in fairness should be borne by the many. [FN192] Thus, while the government has the power to take private property that it needs, that power is conditioned upon the payment of just compensation. When analyzing a claim under the takings clause, three issues present themselves. Initially, has a taking of private property occurred? Secondly, has that property been taken for public use? Finally, what constitutes just compensation?

A. Physical Invasion as a Taking of Property
When analyzing whether a taking has occurred, the courts must determine whether a government action that could be properly characterized as regulatory is sufficiently onerous to require compensation. [FN193] In these cases, the government merely restricts the use of the property, though recognizing the individual's ownership and other rights in that property. Determination of whether a taking has occurred in such cases requires a multifactor balancing test that considers the government's interest, the scope of the restriction and the diminution in the value of the property. [FN194]
In the case of physical appropriations, a different rule applies. Where the challenged government action "is a permanent physical occupation of property, . . . cases have uniformly found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner." [FN195] This "per se" rule for physical occupation simplifies the matter considerably with regard to organs. When the coroner takes a piece of tissue, cuts it out, and transfers it to the possession of an eye bank or other appropriate recipient, there can be no doubt that a permanent physical occupation has occurred. This situation is no different from the government condemning a one foot strip of private land, or confiscating the tires on a private car. That the appropriation is only a *569 small part of the total property is of no significance in determining whether a taking has occurred. [FN196]
Viewed from this perspective, the initial step in the takings analysis is straightforward. However, this analysis assumes that the property right in question has vested in the next of kin at the time of the appropriation. While this assumption is defensible, [FN197] a plausible case could be made that the property rights remain vested in the deceased. If this is the case, the government action might seem closer to the restriction of merely two strands in the bundle of rights: the rights to pass on property through descent or devise. While this interpretation is problematic, [FN198] it has sufficient plausibility to justify a closer examination.
The recent case of Hodel v. Irving [FN199] involved a situation closely analogous to this altered assumption. At issue was section 207 of the Indian Land Consolidation Act of 1983, [FN200] which provided that " n o undivided fractional interest in certain Indian lands under a certain size and value . . . shall descend by intestacy or devise but shall escheat to that tribe . . . ." [FN201]
Acknowledging that the proper framework for analysis was the multifactor inquiry used in evaluating regulations, Justice O'Connor nonetheless found the law to constitute a taking of the decedent's property. Given her analysis of each of the factors, this conclusion evidenced a departure from past cases. Justice O'Connor *570 initially noted that while the individual interests lost were potentially de minimis, the value of the total number of interests lost was significant. [FN202] She then conceded that all of the property interests had not been taken since the decedents could have passed the interests through inter vivos gift, that there were no investment-backed expectations in passing on the property and that there was at least some "'average reciprocity of advantage"' to the owners. [FN203] By the usual application of the multifactor test, this does not appear to be a regulatory taking.
The decisive factor for Justice O'Connor and the six other Justices who concurred in the opinion was the nature of the government's action: "[T]he character of the Government regulation here is extraordinary. . . . [T]he regulation here amounts to virtually the abrogation of the right to pass on a certain type of property--the small undivided interest--to one's heirs." [FN204] Thus, in the face of facts that would normally preclude even the slightest thought of a taking under Penn Central, [FN205] the Court elevated certain strands in the bundle of rights to an exalted status. While the presumed consent laws do not abolish descent and devise for everyone under all circumstances, given the lack of required notice, the result is virtually the same for those who come under the coroner's jurisdiction. Presuming that the right to pass on property after death will remain in its current state of grace, even the recharacterization of these laws as regulations should not preclude a finding that a taking has occurred.

B. Transplanting Human Organs as a Public Use
After the Supreme Court's decision in Hawaii Housing, [FN206] it would seem difficult to argue that anything was a nonpublic use. Deference is uniformly given to the state's determination of what is for the benefit of the public and hence this aspect of the takings clause has ceased to play any role in analyzing this issue. [FN207]
*571 The argument for public use, however, is not completely unpersuasive. The state has a clear interest in improving public health through helping the blind and those in need of other transplants. The argument, however, proves too much: The state always has an interest in increasing the well-being of every person under its jurisdiction. Accordingly, every transfer of property would advance the state interest to some extent. This appears to be a weak thread on which to hang the claim of public use when transferring property via state action. In light of Hawaii Housing, however, a weak thread may be all that is required. The thread of public use in organ transplants would appear to be no weaker than necessary to be approved.

C. Just Compensation
Traditionally, "just compensation" has been determined by the fair market value of the property immediately prior to the taking. In the case of organs, this is a difficult standard to apply because the market for organs is banned for most uses. [FN208] There are several possible directions in which to proceed in the absence of a readily obtainable market price. One could search for a fair market value based on that small aspect of the organ market that is permitted to exist. [FN209] This is less than satisfactory, however, since such a market at the moment does not seem to exist, or exists in such a small degree as to make it difficult to use for these purposes. [FN210] Additionally, using this limited market as the base would seem to give undue weight to the government's artificial restriction on the sale of organs for what are otherwise approved uses, thus preventing the measurement of actual economic value. [FN211]
A second approach would be to find some intrinsic value to the tissue being removed. This approach, however, seems too subjective without adequate external reference points. Without a basis to determine such intrinsic value, this approach might eventually collapse the intrinsic value test into a market oriented test, or some other test that would be better applied overtly.
A more reasonable approach, as suggested by one commentator, *572 would be to value just compensation at the same level as the next of kin would recover in a suit for wrongful interference with a corpse. [FN212] While such recovery tends to reflect the emotional distress suffered by the next of kin, rather than the value of the cadaver itself, it is one of the few plausible surrogates available. The commentator concludes that because the value of recoveries in such cases "would be difficult to ascertain, the statute authorizing removal should provide for it. . . . perhaps varying in amount with the nearness of the relationship between the survivor and the deceased." [FN213] A final possibility would be to turn to the law of conversion. The question of how to value objects that do not have a market is often raised in that context, [FN214] and its methods could be imported into the just compensation area. The Supreme Court itself has recognized the possibility of such an alternative approach in appropriate circumstances. [FN215]

D. The Problem of Autopsies
One final issue is what impact the preceding analysis would have when applied to autopsy laws. In many ways, the laws allowing the coroner to perform an autopsy have an identical effect on the body of the deceased as do the presumed consent laws: portions of the body are removed without consent. These laws go even further by permitting an autopsy even in the face of an explicit protest. [FN216] If the body is property, perhaps this action also constitutes a taking. However, the two types of governmental action can be distinguished.
The main bases for distinction lies in the purposes behind a state-mandated autopsy and the uses to which the removed tissue is put. Autopsy laws in general apply where the cause of death is unknown or the *573 death is surrounded by suspicious circumstances. [FN217] The state's interest in such cases is to discover the true cause of death so that appropriate measures may be taken to protect the public if necessary. Where the death was found to have resulted from criminal activity or from contagious disease, for example, the state would then institute measures to track down the responsible criminal or to protect the public from the potential spread of disease. When translated into the jurisprudence of the takings clause, these actions would be akin to preventing a recurrence of other behavior harmful to the public. [FN218] Such actions have never been held to constitute takings because an implicit condition to the ownership of all property is that it not be utilized in a deleterious manner. [FN219]
This argument breaks down, however, once it is recognized that it is not the corpse that poses the threat to the public, but some external actor--either the criminal or other person who might be a carrier of the disease that led to this person's death. The body merely possesses information that might lead to the apprehension of other wrongdoers but in itself causes no harm. Viewed in this way, an autopsy is not designed to prevent a noxious use of property, rather it extracts a public benefit by acquiring information.
The line to be drawn between preventing a harm and extracting a benefit may be uncertain, but it nonetheless plays a central role in the debate over regulatory takings. Rather than try to provide a broadly applicable theoretical approach to the problem, this Note relies on analogies only to show that autopsies fall on one side of the line while organ removals fall on the other. [FN220] The closest example would be that of property taken for evidence in the course of a police investigation. Upon investigation of a crime, the police certainly have the right to seize property that might be evidence and hold it for the purpose of analysis and investigation. A murder weapon, the getaway vehicle, a blood-stained carpet and numerous other items come to mind. If, in the course of analysis, the property itself is somehow consumed or destroyed, no takings claim will lie. [FN221] The government's action in performing *574 an autopsy is almost identical to this scenario. In order to protect the public from some imminent harm, the coroner must investigate suspicious deaths, and the dead body is the only evidence. Where part of the body must be taken as a necessary incident to that investigation (blood and tissue samples, etc.), such takings should not require compensation. Allowable takings are limited to those that are necessary incidents to the investigation, and, in fact, this limitation comports well with the established autopsy jurisprudence, which requires the coroner to return the unused portions of the body. Excessive autopsies are actionable. [FN222]
This rationale removes autopsy laws from the scrutiny of the takings clause, but not necessarily from the due process clause. [FN223] This is not surprising since the fourth amendment in all likelihood provides sufficient procedural protections, and would apply to all autopsies (being both a search and a seizure). The difference here is that there is a lower level of process due since the governmental interest is concededly stronger and the private interest weaker given the implied servitude. Autopsies for science, however, would not be exempt from the arguments of this Note since they are more analogous to the extraction of a public benefit.


With changing times come changing values and new ways of perceiving old and familiar things. Because the human body has acquired the de facto characteristics of property, though not the name, it is time for the law to catch up with reality. The values that underlie both the due process and the takings clauses contain as much meaning when the government appropriates the body of one's next of kin as when it takes one's television set. Applying constitutional protections in both circumstances would ensure that if "she's got Bette Davis['s] eyes," at least they've been paid for.

[FNa1]. J. DeShannon & D. Weiss, Bette Davis Eyes (1981).

[FN1]. The word "property" as used throughout this Note will have two possible meanings. Initially, the word may refer to the bundle of rights that a person has relative to a thing, the res. See infra notes 98-101 and accompanying text. Alternatively, the word may be used to refer to the res itself, the object of property rights.

[FN2]. Numerous commentators, spanning a period of over twenty years, have advocated some form of reduction of the consent requirement for organ donation. Many of the proposals actually go far beyond the current laws which limit the role of consent only in coroner's cases. See, e.g., Caplan, Organ Transplants: The Cost of Success, Hastings Center Rep., Dec. 1983, at 23, 27-28 (Dec. 1983) (suggesting that hospitals be required to salvage all suitable organs unless an objection is known); Dukeminier & Sanders, Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs, 279 New Eng. J. Med. 413 (1968) (burden on individual or next of kin to object); Muyskens, An Alternative Policy for Obtaining Cadaver Organs for Transplantation, 8 Phil. & Pub. Aff. 88, 99 (1978) (same); Note, Compulsory Removal of Cadaver Organs, 69 Colum.L.Rev. 693 (1969) [hereinafter Note, Compulsory Removal] (proposing legislation requiring compulsory removal of organs, regardless of objection); Note, Consent and Organ Donation, 11 Rutgers Computer & Tech. L.J. 559, 571 (1985) (objection to removal should be allowed only by decedents while they were alive). Surprisingly, few of these commentators have given any in depth consideration to the takings or due process issues raised by these proposals. Some of the exceptions include Dukeminier, Supplying Organs for Transplantation, 68 Mich.L.Rev. 811, 833-35 (1970) (dead body not property hence not subject to takings clause); Silver, The Case for a Post-Mortem Organ Draft and a Proposed Model Organ Draft Act, 68 B.U.L.Rev. 681, 712-15 (1988) (same); Note, Compulsory Removal, supra, at 695-700 (compulsory removal would constitute a taking and require compensation).

[FN3]. 8A U.L.A. 15 (1983). This is the original version of the Act and the one adopted by most states. The most recent amended version was issued in 1987 and contains several significant changes. 8A U.L.A. 2 (Supp.1989).

[FN4]. B. Crewe & K. Nolan, My Eyes Adored You (1975).

[FN5]. See Matthews, Whose Body? People as Property, 36 Current Legal Probs. 193, 196 (1983) (a "thriving trade in digging up buried cadavers and selling them for medical dissection" existed in the late 1700s).

[FN6]. See Doodeward v. Spence, 6 C.L.R. 406, 417 (Austl. 1908) (showman displaying the preserved corpse of two-headed stillborn child); cf. Matthews, supra note 5, at 193 ("In University College itself the mortal remains of Jeremy Bentham have sat on view to all and sundry for the last 150 years.").

[FN7]. J. Lafoy, The Complete Coiffeur: An Essay on the Art of Adorning Natural, and of Creating Artificial, Beauty 101-05 (1817) (discussing the history of wigs in 17th century England and France).

[FN8]. Murray, Merrill & Harrison, Renal Homotransplantation in Identical Twins, 6 Surgical F. 432 (1955).

[FN9]. J. Swerdlow, Matching Needs, Saving Lives: Building a Comprehensive Network for Transplantation and Biomedical Research 14 (1989); Specter, When Doctors Profit from a Patient's Discarded Tissues, Wash. Post Nat'l Weekly Ed., Jan. 16-22, 1989, at 39 (8967 kidney transplants in 1987, reproducing figures from the American Council on Transplantation).
[FN10]. The various organs usable for transplantation or therapeutic purposes continue to increase. In 1988, transplants performed in the United States included 1647 hearts, 1680 livers, 243 pancreases, 74 heart/lung combinations and 31 lungs. J. Swerdlow, supra note 9, at 14. In 1987, some of the numbers were 35,000 corneas, 1512 hearts, 1182 livers and 1659 transplants of bone marrow. Specter, supra note 9, at 39 (diagram). The recent support by a federal advisory panel for the use of fetal tissue in research and therapy raised the possibility of additions to the list. See Leary, U.S. Panel Backs Research Use of Fetal Tissue from Abortions, N.Y. Times, Sept. 17, 1988, at 1, col. 3; see also McAuliffe, A Startling Fount of Healing, U.S. News & World Rep., Nov. 3, 1986, at 68 (describing treatments using fetal blood, brain, adrenal and pancreatic cells transplanted into adults). As things currently stand, however, the process of finding uses for fetal tissue may be slowed by the Bush Administration's extension of a ban on federal financing of research using such tissue. Hilts, Citing Abortion, U.S. Extends Ban on Grants for Fetal Tissue Work, N.Y. Times, Nov. 2, 1989, at A1, col. 4.

[FN11]. For newborns, if the transplant does not occur within the first few months after birth, the vision center in the brain fails to develop properly and the person will be blind for life even if a later transplant is made. See State v. Powell, 497 So. 2d 1188, 1190-91 (Fla. 1986) (state interest in preventing blindness in newborns requires transplants during first few months of life for afflicted infants), cert. denied, 481 U.S. 1059 (1987).

[FN12]. The antirejection drug cyclosporine has been in widespread use for approximately six years with considerable success. Radical forms of radiation therapy, currently under investigation, appear promising as an alternative to drug therapy, which has serious side effects and is very expensive. Blakeslee, Doctors Test Radiation to Combat Rejection in Organ Transplants, N.Y. Times, Nov. 1, 1988, at C3, col. 1.

[FN13]. A cell line derives from the tissue of some living creature. Cells can be kept alive independent of the original organism and can continue to divide and grow. The HeLa cel line, for example, derived from a carcinoma of the cervix of a woman who died in 1951, is used by "medical and research laboratories the world over." W. Keeton, Biological Science 684 & n.4 (3d ed. 1980); Jones, McKusick, Harper & Wuu, The HeLa Cell and a Reappraisal of its Origin, 38 Obstetrics & Gynecology 945 (1971); see also Office of Technology Assessment, U.S. Congress, Ownership of Human Tissues and Cells 31-35 (New Developments in Biotechnology No. 1, 1987) [hereinafter Ownership of Human Tissues] (use of cell cultures at both the basic research and commercial levels).

[FN14]. This commercial potential has already led to a number of legal battles concerning the rights to human cell lines. See Holden, Hayflick Case Settled, 215 Sci. 271 (1982) (out-of-court settlement concerning the rights to cell lines of the first normal human cells established in culture); Ownership of Human Tissues, supra note 13, at 4 (dispute over ownership of hybridoma cell line developed from patient tissue settled out of court); Labaton, Spleen Suit Vexes Biotech Industry, N.Y. Times, Feb. 6, 1989, at D2, col. 1 (pending litigation over a patient's right in a cell line derived from his spleen). The latter case is discussed in greater detail infra notes 53-61 and accompanying text.

[FN15]. Labaton, supra note 14, at D2, col. 1 (value of one cell line estimated at about $3 billion).

[FN16]. Biotech Comes of Age, Bus. Wk., Jan. 23, 1984, at 84. While this Note will focus on the use of cadaveric tissue for transplantation, the issues raised also have implications for other scientific and commercial uses of such tissues. The same is true for tissues derived from live persons either through donation or after removal in the course of therapeutic surgery. See Note, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 UCLA L.Rev. 207 (1986). These other areas raise additional issues that will only be alluded to briefly in the course of the discussion on cadaveric tissues used for transplant and therapy.

Diamond v. Chakrabarty, 447 U.S. 303 (1980) (genetically engineered micro-organism held patentable subject matter); Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir.1987) (rejecting an exception to the Delaney Clause for substances having a de minimis risk of inducing cancer), cert. denied, 108 S.Ct. 1470 (1988); Foundation on Economic Trends v. Heckler, 756 F.2d 143 (D.C. Cir.1985) (challenge to the deliberate release of genetically engineered micro-organisms into the environment); In re Baby M, 109 N.J. 396, 421-44, 537 A.2d 1227, 1240-51 (1988) (invalidating surrogate motherhood contract as conflicting with N.J. law and public policy);In re Doe, 104 A.D.2d 200, 481 N.Y.S.2d 932 (1984) (authorizing bone marrow transplant from severely mentally retarded person to his brother); Sherman, Embryo Cases: Different Views, Nat'l L.J., Oct. 2, 1989, at 21 (Maryland case holding frozen embryos to be human beings, not property, compared with Virginia case holding the opposite).

[FN18]. Laws regulating blood and semen donation, live organ donation and human experimentation, while certainly related to the topic of this Note, involve a number of additional unique considerations that would be better left to separate and more detailed treatment than is possible here.

[FN19]. Some notable contributions include Sadler, Sadler, Stason & Stickel, Transplantation--A Case for Consent, 280 New Eng. J. Med. 862 (1967); Vestal, Taber & Shoemaker, Medico-Legal Aspects of Tissue Homotransplantation, 18 U.Det.L.J. 271 (1955). Additional contributions during the campaign for state adoptions of the UAGA include Dukeminier, supra note 2; Louisell, The Procurement of Organs for Transplantation, 64 Nw.U.L.Rev. 607 (1969); Sadler, Sadler & Stason, Transplantation and the Law: Progress Toward Uniformity, 282 New Eng. J. Med. 717 (1970); Sadler & Sadler, Transplantation and the Law: The Need for Organized Sensitivity, 57 Geo. L.J. 5 (1968).

[FN20]. 8A U.L.A. 16 (1983).

[FN21]. See 8A U.L.A. 22-23 (Supp. 1989) (table of state Anatomical Gift Acts). The UAGA has served as the basic structural model for the various state laws. In general this Note will discuss the provisions of the UAGA itself and point out the differences in actual state law only where they are relevant to the issue being discussed.

[FN22]. Id. at 2.

[FN23]. See Cal. Health & Safety Code § 7150 (West Supp.1990) (table listing seven jurisdictions that have adopted the UAGA(1987)).

[FN24]. In authorizing the donation of any "part" of the body, the 1968 Act defines "part" as "organs, tissues, eyes, bones, arteries, blood, other fluids and any other portions of a human body." UAGA(1968) § 1(e).
Not all uncertainty was removed, however. Both the 1968 and 1987 Acts define "decedent" to include a stillborn infant or fetus. UAGA(1968) § 1(b); UAGA(1987) § 1(2). Whether stillborn modifies both infant and fetus is unclear. The status, therefore, of fetuses resulting from abortions remains unresolved.

[FN25]. UAGA(1968) § 3 provides:
The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:
(1) any hospital, surgeon, or physician, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or
(2) any accredited medical or dental school, college or university for education, research, advancement of medical or dental science, or therapy; or
(3) any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or
(4) any specified individual for therapy or transplantation needed by him.

[FN26]. UAGA(1968) § 2(a) provides that "[a]ny individual of sound mind and 18 years of age or more may give all or any part of his body for any purpose specified in section 3, the gift to take effect upon death." The following subsection, however, only allows the next of kin to authorize a donation "in the absence of actual notice of contrary indications by the decedent." Id. § 2(b).

[FN27]. Id. § 2(b).
Where the decedent has not previously made her wishes known the following persons, in order of priority stated . . . may give all or any part of the decedent's body for any purpose specified in section 3:
(1) the spouse,
(2) an adult son or daughter,
(3) either parent,
(4) an adult brother or sister,
(5) the guardian of the person of the decedent at the time of his death,
(6) any other person authorized or under obligation to dispose of the body. The 1987 Act, § 3(a), adds "a grandparent of the decedent" after brother or sister and eliminates the former number (6).

[FN28]. While the UAGA(1968) did not explicitly address when people would be liable, it was enacted as a permissive statute against a background of laws restricting unauthorized dissection of the human body. See, e.g., N.Y. Pub. Health Law § 4210-a (McKinney 1985)(unlawful dissection of a dead body is a misdemeanor).

[FN29]. The Act left this sticky issue to the individual states. A number of states ultimately chose to ban the sale of organs for transplantation, see, e.g., Ill.Ann.Stat. ch. 110 1/2, ¶ 308.1 (Smith-Hurd Supp.1989), and in 1984 the federal government also imposed a ban on the sale of organs affecting interstate commerce. National Organ Transplant Act, Pub.L. No. 98-507, Title III, § 301, 98 Stat. 2346 (1984) (codified at 42 U.S.C. § 274e (Supp. V 1987). The 1987 version of the UAGA also elects to ban organ sales. UAGA(1987) § 10.
This issue has sparked considerable debate in both the medical and legal literature. See generally, Schwartz, Bioethical and Legal Considerations in Increasing the Supply of Transplantable Organs: From UAGA to "Baby Fae," 10 Am.J.L. & Med. 397, 407-09 (1985) (describing current debate over use of altruistic or market-based system of organ acquisition). Perhaps the most famous writing on the subject is R. Titmuss, The Gift Relationship (1971), where the virtues of a nonpaid system of blood collection are set forth. The principles developed in this book have set the framework for much of the subsequent writings on payment for organs. Commentators opposed to the sale of organs include Murray, Gifts of the Body and the Needs of Strangers, Hastings Center Rep., Apr. 1987, at 30, 38 ("[G]ifts of the body, [as opposed to sales,] . . . connect us in our mutual quest to relieve suffering and to pursue our good, separately and together."); Note, Source Compensation for Tissues and Cells
Used in Biotechnical Research: Why a Source Shouldn't Share in the Profits, 64 Notre Dame L.Rev. 628, 644 (1989) (National Organ Transplant Act's ban on the sale of "organs" should be extended to cover "tissues" as well). In favor of permitting payment to encourage organ donation are Andrews, My Body, My Property, Hastings Center Rep., Oct. 1986, at 28; Cohen, Increasing the Supply of Transplant Organs: The Virtues of a Futures Market, 58 Geo.Wash.L.Rev. 1, 2 (1989); Note, The Sale of Human Body Parts, 72 Mich.L.Rev. 1182, 1264 (1974) [hereinafter Note, Sale of Human Body Parts] (suggesting a market in organs as a preferable alternative to restricting consent as a means of increasing the supply of organs for transplant).
Taking a mixed view are J. Swerdlow, supra note 9, at 20 (finding no convincing evidence to support allowing sales but suggesting experiments to test the efficiency of a limited payment scheme); Dukeminier, supra note 2, at 865-66 (generally opposing widespread compensation for organs but advocating routine autopsy and presumed consent as a means of increasing organ supply); Silver, supra note 2, at 703 ("It is not here contended that an organ market is inherently bad, only that, in comparison with an organ draft, it is an inferior solution . . . .").
The implications of a ban on organ sales as they relate to the existence of property rights will be discussed further in Part II, infra notes 73-75, 109-14 and accompanying text.

[FN30]. UAGA(1968) § 7(d) ("The provisions of this Act are subject to the laws of this state prescribing powers and duties with respect to autopsies.").
These autopsy laws generally authorized the coroner or state medical examiner to perform an autopsy to ascertain the cause of death from an accident or criminal activity or occurring under suspicious circumstances. See, e.g., Grad v. Kaasa, 68 N.C.App. 128, 131, 314 S.E.2d 755, 758 (1984) (deaths from "homicide, suicide, trauma, accident, disaster, violence, unknown, unnatural or suspicious circumstances, in police custody, jail or prison, by poison or suspected poisoning, suggesting possible public health hazard, during surgical or anesthetic procedures, sudden deaths not reasonably related to previous known diseases and deaths without medical attendance" would justify an autopsy if "both advisable and in the public interest"); Md. Health-Gen. Code Ann. §§ 5-309 to -310 (Supp.1989) (deaths occurring: by violence; by suicide; by casualty; suddenly; or in any suspicious or unusual manner. Autopsy at the medical examiner's discretion in such cases.).

[FN31]. See Dukeminier, supra note 2, at 814-15; Note, The Organ Supply Dilemma: Acute Responses to a Chronic Shortage, 20 Colum.J.L. & Soc.Probs. 363, 365-66; see also J. Swerdlow, supra note 9, at 11-15 (tracing the rising success in transplants and the current shortages of virtually all transplantable body parts); Hansmann, The Economics and Ethics of Markets for Human Organs, in Organ Transplant Policy: Issues and Prospects 57 (1989) ( "Recent advances in the technology for transplanting human organs have led to a large increase in the demand for suitable organs. As a consequence, demand now considerably exceeds supply.").

[FN32]. Dukeminier, supra note 2, at 825-31.

[FN33]. See Sadler, Sadler & Stason, supra note 19.

[FN34]. "Coroner" should be read to include both coroners and medical examiners.

[FN35]. State laws falling generally into the presumed consent category include Ark. Code Ann. § 12-12-320 (1987) (pituitary gland); Cal. Gov't Code §§ 27491.46-.47 (West 1988) (pituitary & corneas); Colo.Rev.Stat. § 30-10-621 (1986) (pituitary); Conn.Gen.Stat.Ann. § 19a-281 (West 1986) (pituitary & corneas); Del. Code Ann. tit. 29, § 4712 (Supp.1988) (corneas); Fla.Stat.Ann. § 732.9185 (West Supp.1989) (corneas); Ga. Code Ann. § 31-23-6 (1985)(eyes and corneas); Ky.Rev.Stat.Ann. § 311.187 (Michie Supp.1988) (corneas); Md.Est. & Trusts Code Ann. § 4-509.1 (Supp.1989) (corneas); Mich.Comp.Laws Ann. § 333.10202 (1989) (corneas); Mo.Ann.Stat. § 58.770 (Vernon 1989) (pituitary); N.C.Gen.Stat. § 130A- 391 (1989) (corneas); Ohio Rev. Code Ann. § 2108.60 (Baldwin 1987) (corneas); Okla.Stat.Ann. tit. 63, § 944.1 (West Supp.1990) (pituitary); Tenn. Code Ann. § 68-30-204 (Supp.1989)(corneas); Tex. Health & Safety Code Ann. § 693.012 (Vernon pamphlet 1990) (corneas); W.Va. Code § 16-19-3a (1985) (corneas). The pituitary removal statutes may have less significance in the future as synthetic versions of human growth hormone become available. See Schmeck, Synthetic Growth Hormone Cleared, N.Y. Times, Oct. 19, 1985, at 7, col. 1. The past contamination of some batches of natural hormone with the virus responsible for Creutzfeldt-Jakob disease should provide additional incentive for a transition away from human sources. See id.
With minor variations the statutes follow the pattern described in the text. The Michigan statute with respect to the removal of corneas is illustrative:
In any case in which an autopsy is to be done by a county medical examiner . . . the cornea of the deceased person may be removed . . . only under the following circumstances:
(a) An autopsy has already been authorized by the county medical examiner.
(b) The county medical examiner does not have knowledge of an objection by the next of kin of the decedent to the removal of the cornea.
(c) The removal of the cornea will not interfere with the course of any subsequent investigation or autopsy or alter post-mortem facial appearance.
Mich.Comp. Laws Ann. § 333.10202 (Supp.1989)
Looking at the statute literally the medical examiner may remove the cornea even though she has knowledge of the decedent's objection. Taken in the context of the law's earlier donation provisions, however, one would suspect that this was an oversight. Courts would most likely construe this to prevent removal of the corneas if there is knowledge of objection by either the decedent or the next of kin.
The Michigan Attorney General has opined that this law requires substantial efforts to obtain consent prior to removal. Op. Att'y Gen. 6369 (1986). The one Michigan court to confront the issue, however, has read the statute as it is written. Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 278 (Mich.Ct.App. 1984).

[FN36]. Such a requirement can be characterized as an "opt-out" provision, setting a presumption of consent under certain conditions but allowing the deceased or the next of kin to refuse donation by making their objection known.

[FN37]. See, e.g., Mich.Comp. Laws Ann. § 333.1203 (Supp.1989).
While most laws adopted in the United States limited the presumed consent approach to bodies under the authority of the coroner, other countries have taken a more comprehensive approach and extend presumed consent to all bodies. See, e.g., J. Swerdlow, supra note 9, at 19 ("More than a dozen countries . . . have adopted 'presumed-consent' laws, under which everyone is designated a donor unless they register their refusal.")

[FN38]. Cal. Gov't Code § 27491.45(a) (West 1988) (coroner may retain tissues removed at autopsy for the advancement of science); Haw.Rev.Stat.Ann. § 841-14 (1988) (coroner may retain tissues removed at autopsy for science, teaching, or therapy; provision is independent of Hawaii's UAGA and purports to override conflicting laws); Ohio Rev. Code Ann. § 2108.53 (Baldwin 1987)(pituitary may be removed by coroner regardless of consent except where it is already the object of an anatomical gift or an objection is based upon the tenets of a well-recognized religion); Laws of P.R.Ann.tit. 18, § 731g (1989)(medical examiner may donate any part; no mention of consent at all); Vt.Stat.Ann.titl. 18, § 150 (Supp.1989)(pituitary may be removed by medical examiner regardless of consent except where objection is based on religious beliefs).

[FN39]. See, e.g., UAGA(1987) § 4. The UAGA(1987) applies to all organs, not just corneas. Section 4(a) permits such removal only for the purposes of transplant or therapy and where the coroner has received a request for the part from an appropriate recipient. Section 4(a)(2) adds the further requirement that the official make "a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records" and to inform the appropriate next of kin so that they may make their desires on the matter known. Where the coroner has knowledge of an objection to the removal of a part, that objection takes priority and no removal is permitted.
State laws in this group include Ariz.Rev.Stat.Ann. §§ 36-851 to -852 (1986 & Supp.1989)(corneas; diligent efforts); Ark.Stat.Ann. § 20-17-604 (Supp.1989)(all parts); Cal. Health & Safety Code § 7151.5 (West Supp.1990)(all organs and pacemakers); Colo.Rev.Stat. § 30-10-620 (1986)(corneas); Haw.Rev.Stat.Ann. § 327-4 (1988)(all parts); Idaho Code § 39-3405 (Supp.1989)(all parts); 110 1/2, ¶¶ 351-354 (Smith-Hurd Supp.1989)(corneas); La.Rev.Stat.Ann. §§ 17:2354.1-3, 33:1565 (West 1982, 1988 & Supp.1989)(eyes, kidneys, heart, lungs, liver, soft tissue, and bone; good faith efforts); Md.Est. & Trusts Code Ann. § 4- 509 (Supp.1989)(internal organs);Mass.Ann. Laws ch. 113, § 14 (Law.Co- op.Supp.1989)(corneas; good faith efforts); Miss. Code Ann. § 41-61-71 (Supp.1989)(all parts); Mont. Code Ann. § 72-17-215 (1989)(all parts); N.D.Cent. Code § 23-06.2-04 (Supp.1989)(all parts); R.I. Gen. Laws § 23- 18.6-4 (1989)(all parts); Tex. Health & Safety Code Ann. §§ 693.001-.003 (Vernon pamphlet 1990)(nonvisceral organs); Utah Code Ann. § 26-4-23 (1989)(all parts); Wash.Rev. Code Ann. § 68.50.280 (Supp.1989)(corneas).
The Arkansas and California laws are actually variants of this category in that they apply not just to coroners but to hospitals in general. This is closer to the model used in other countries and avoids the issue of creating an exception that applies exclusively to the government. The implications of this variation on the property issue, as well as on the constitutional questions, are discussed infra notes 65 & 94.

[FN40]. It has been suggested that the change is not particularly significant since a similar rule could be implied from the original structure of the UAGA(1968). See Quay, Utilizing the Bodies of the Dead, 28 St. Louis U.L.J. 889, 894-95 (1984)(reversion of decision-making authority to any person authorized to dispose of the body whenever relatives in a prior category are unavailable establishes an unwarranted presumption of consent).
Professor Quay actually goes one step further and argues that allowing the next of kin to donate in the absence of knowledge of an objection by decedent is an inappropriate presumption of consent and violates the decedent's right to a decent burial. Id. at 920.

[FN41]. See, e.g., Ill.Rev.Stat. ch. 110 1/2, ¶¶ 751-756 (Smith-Hurd Supp.1989). These "required request" provisions were intended to overcome the reluctance of many doctors to ask the next of kin for consent, even when they are available, for fear of sounding crass and insensitive. See note, supra note 31, at 369-70.

[FN42]. The laws falling into this final category include Ala. Code §§ 22-19-40 to -44 (1984 & Supp.1989); Alaska Stat. §§ 13.50.010-.090 (1985); D.C. Code Ann. § 2-1605 (1988); Ind. Code Ann. §§ 29-2-16-1 to - 10 (Burns Supp.1989); Iowa Code Ann. §§ 142A.1-.8 (1989); Kan.Stat.Ann. §§ 65-3209 to -3218 (1985 & Supp.1987); Me.Rev.Stat.Ann.tit. 22, §§ 2901-2910 (1980 & Supp.1989); Minn.Stat.Ann. §§ 525.921-.94 (West 1975 & Supp.1990); Neb.Rev.Stat. § 71-480 to -4813 (1986); Nev.Rev.Stat.Ann. §§ 451.500-.590 (Michie 1986 & Supp.1989); N.H.Rev.Stat.Ann. §§ 291-A:1-9 (1987 & Supp.1989); N.J.Stat.Ann. §§ 26:6-57 to -65 (West 1987 & Supp.1989); N.M.Stat.Ann. §§ 24-6-1 to - 11 (1986 & Supp.1989); N.Y.Pub. Health Law § 4300-08 (McKinney 1985 & Supp.1990); Or.Rev.Stat. §§ 97.250-.300 (1989); 20. Pa.Cons.Stat.Ann. §§ 8601-08 (Purdon 1975 & Supp.1989); S.C. Code Ann. §§ 44-43-310 to -400 (Law Co-op. 1985 & Supp.1989); S.D. Codified Laws Ann. §§ 34-26-20 to -41 (1986); Va. Code Ann. §§ 32.1-289 to -297.1 (1985 & Supp.1989); Wis.Stat.Ann. § 157.06(West 1989); Wyo.Stat. § 35- 5.101 to -112 (1988). In fact, most state laws fall into this category with regard to organs or tissues other than those specifically covered by presumed consent or reasonable efforts provisions.

[FN43]. See, e.g., D.C. Code Ann. § 2-1509 (1988); see also Pub.L. No. 99- 509, § 9318, 100 Stat. 2009 (1986)(codified at 42 U.S.C. § 1320b-8 (West Supp.1989)(requiring hospitals, in order to be eligible for Medicaid/Medicare, to establish a protocol designed to make families aware of their option to donate).

[FN44]. State v. Powell, 497 So.2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987); Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985); Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275 (Mich.Ct.App. 1984).

[FN45]. 497 So.2d 1188 (Fla. 1986), cert. denied, 481 U.S. 1059 (1987).

[FN46]. Id. at 1190.

[FN47]. The court reviewed the purposes of the presumed consent law and declared it to be a reasonable means of achieving a "permissible legislative objective of providing sight to many of Florida's blind citizens." Id. at 1191. The court also noted that the intrusion of removing the decedent's corneas, by comparison to the autopsy, was "infinitesimally small." Id.
While this latter observation was not relied upon by the court in reaching its decision, it is certain to have colored the court's assessment of the case. Such concerns, though relevant in the subsequent balancing of interests, should not be used to determine the threshold issue of whether a property interest initially exists. The Constitution does not distinguish between the law student's old Datsun and the lawyer's new Porsche at such an early stage. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-37 (1982) ( "constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied").

[FN48]. 497 So. 2d at 1191-92. The court cited numerous authorities for the proposition that the next of kin have only a limited right to possess for the purpose of burial as opposed to a property right. Noting a number of differences between the rights relative to a dead body and the rights normally associated with more fungible and commercial forms of property, the next of kin were found to have a mere right to bring an action in tort, not a property right. Id. at 1192.This is a rather curious way of avoiding the question since the right to bring an action in tort tells nothing of the nature of the underlying interest that has been violated. Compare Prosser & Keeton on The law of Torts § 15 (W. Keeton 5th ed. 1984) (conversion and trespass) with id. § 12 (infliction of mental distress).

[FN49]. 497 So. 2d at 1193. In closing, the majority noted that an issue of this complexity involving the balancing of interests ought to be handled by the legislature. Id. at 1194.

[FN50]. Id. at 1195 (Shaw, J., dissenting) ("[S]ince time immemorial it has been the duty and the right of the next of kin to take control, possession, and custody of the body and remains of a deceased family member . . . . [Such common law rights should not] be narrowly construed.").

[FN51]. In Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), the parents of an infant who had died of Sudden Infant Death Syndrome sued the eye bank that had been authorized by the coroner to remove corneal tissue during an autopsy. The lower court held in favor of the parents, finding that the statute authorizing removal was "violative of due process in that it deprives a person of a property right in the corpse of his next-of-kin, and fails to provide notice and an opportunity to object." Id. at 60, 335 S.E.2d at 128. The Georgia Supreme Court reversed, holding that there was no "constitutionally protected right in a decedent's body." Id. at 61, 355 S.E.2d at 128. The court held that while at common law there existed a quasi- property right in a dead body, this right was not of constitutional significance. Id.
In Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275 (Mich. Ct. App. 1984), the complaint alleged that the statute authorizing removal of corneal tissue without consent was an unconstitutional invasion of the right of privacy. While Michigan law recognized a common law right of the next of kin to bury the deceased without mutilation, such a right was not considered to be of constitutional dimension. Id. at 277. The court stated that whatever constitutional right of privacy may exist with respect to the integrity of the body, such a right is "a personal one [that] ends with the death of the person to whom it is of value." Id. The Court also stated in dicta that there was no property right in a dead body, though this issue does not appear to have been raised below or on appeal. Id. (citing Deeg v. Detroit, 345 Mich. 371, 375, 76 N.W.2d 16, 19 (1956)).

[FN52]. If the government is permitted to make such exceptions to otherwise general rules, then virtually no action could be characterized as abrogating a property right. For example, the government could merely pass a law that ownership rights in land exist except as against the government, thus placing any future appropriation beyond the reach of the Constitution. When evaluating a governmental interference with property rights, those rights must necessarily be determined from an external vantage point. See infra note 94.

[FN53]. 249 Cal. Rptr. 494 (Ct. App. 1988).

[FN54]. This form of therapy is standard for patients with hairy cell leukemia as it helps normalize the white blood cell count and alleviate some of the symptoms, though it does not cure the disease. Stone, Cells for Sale, Discover, Aug., 1988, at 34.

[FN55]. "'The foundation for the action of conversion . . . rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results."' Moore, 249 Cal. Rptr. at 503(emphasis deleted) (quoting Poggi v. Scott, 167 Cal. 372, 375, 139 P. 815, 816 (1914)). See generally Prosser and Keeton on the Law of Torts, supra note 48, § 15 (discussing the "highly technical" rules of conversion).

[FN56]. 249 Cal. Rptr. at 503 ("plaintiff's allegation of a property right in his own tissue is sufficient as a matter of law"). The case was then remanded for trial. The ruling is currently on appeal to the California Supreme Court.

[FN57]. Id. at 504.

[FN58]. Id. at 505. One could interpret the court's statement here to suggest that there is a property right in the living body only. Given the court's emphasis on the public health concerns as the factor distinguishing dead bodies, however, there is no reason why this concern would deny the existence of a post-mortem property interest.

[FN59]. Id. Among the cases cited include Venner v. State, 30 Md.App. 599, 354 A.2d 483 (Ct.Spec.App. 1976), aff'd, 279 Md. 47, 367 A.2d 949, cert. denied, 431 U.S. 932 (1977), involving an illegal police seizure of narcotics-filled balloons found in the defendant's feces. The Maryland court acknowledged that "[i]t is not unknown for a person to assert a continuing right of ownership, dominion, or control, for good reason or for no reason, over such things as excrement, fluid waste, secretions, hair, fingernails, toenails, blood, and organs or other [separated] parts of the body." Id. at 626, 354 A.2d at 498 (footnote omitted). The Moore court also analogized to the requirement of consent for medical treatment, citing Justice (then Judge) Cardozo's famous epigram that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body." 249 Cal. Rptr. at 505 (quoting Schloendorff v. Society of the N.Y. Hosp., 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914)). Other examples cited by the court included the "quasi property right" over a dead body recognized in the next of kin, the right to control disposition of the remains found in California's version of the UAGA, the defendant's own ironic claim of a property interest in the cells, and finally the property right in an individual's name, face and likeness. 249 Cal. Rptr. at 505-08.

[FN60]. 249 Cal. Rptr. at 533-34 (George, J., dissenting).

[FN61]. Id. at 535.

[FN62]. C. Porter, My Heart Belongs to Daddy (1938).

[FN63]. Property is protected against both deprivation without due process and taking for public use without just compensation. Liberty only receives due process protection. U.S. Const. amends. V, XIV.
For a suggestion that too much is made of this difference, see Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972) (Stewart, J.) ("[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right . . . .").

[FN64]. By taking a broad view of what is related to the body, a number of rights may be included that may eventually fall outside the category of "property rights." At this stage, however, it is better to be overinclusive because the eventual differentiation of liberty rights from property rights will serve to clarify those two categories as they relate to the body.

[FN65]. Government action which alters or abolishes a common-law right does not necessarily violate the fifth or fourteenth amendment since there is generally no property right in a common-law rule itself. See Munn v. Illinois, 94 U.S. 113, 134 (1876). But see Hodel v. Irving, 481 U.S. 704, 716-17 (1987) (virtual total abolition of right to pass property through descent and devise held a taking). In contrast, government action which conflicts with a generally recognized right, for example taking possession of a strip of private property in order to build a highway, is typically subject to fifth amendment scrutiny. It therefore is important to determine whether it is the general rule of conduct that has been changed or merely an exception created exempting the government from an otherwise applicable rule. A logical approach would have the existence of a right determined by reference to third parties, not the government, since it is the propriety of the government's action that is being evaluated in the first place.

[FN66]. See, e.g., Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93, 186 A. 585, 586 (1936) ("[I]t is now the prevailing rule . . . that the right to bury the dead and preserve the remains is a quasi right in property . . . ."); In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) (the state recognizes "a quasi-property right in a dead body which vests in the nearest relative of the deceased"); see also Note, supra note 16, at 225-27 (surveying common law's treatment of property rights in dead bodies).
The common-law position in some states makes the rights of the next of kin subservient to any disposition directed by the decedent prior to death. See, e.g., In re Estate of Moyer, 577 P.2d 108, 110 (Utah 1978) (person's disposition of his body is "binding after his death, so long as that is done within the limits of reason and decency").

[FN67]. See, e.g., Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 672, 292 N.W.2d 816, 820 (1980) (though arguing that this is a personal, and not a property, right); Grad v. Kaasa, 68 N.C.App. 128, 130, 314 S.E.2d 755, 758(cause of action for "wrongful autopsy" arising from quasi-property right of next of kin), rev'd on other grounds, 312 N.C. 310, 321 S.E.2d 888 (1984).

[FN68]. See infra note 106.

[FN69]. See, e.g., Dougherty v. Mercantile-Safe Deposit & Trust Co., 282 Md. 617, 620, 387 A.2d 244, 246 (1978).

[FN70]. See, e.g., Estate of Moyer, 577 P.2d at 110 ("laws relating to wills and the descent of property were not intended to relate to the body of a deceased").

[FN71]. See, e.g., UAGA (1987) § 2 (authorizing individuals to direct the post-mortem disposition of their bodies).

[FN72]. Estate of Moyer, 577 P.2d at 110 n.4 ("That our legislature has recognized that a person has property rights in his body and can so dispose of his organs, see Anatomical Gift Act, U.C.A. 1953, Sec. 26-26-1 et seq."). The Utah Anatomical Gift Act is currently codified at Utah Code Ann. §§ 26- 28-1 to -8 (1989 & Supp.1989).

[FN73]. Pub.L. No. 98-507, Title III, § 301, 98 Stat. 2346 (1984) (codified at 42 U.S.C. § 274e (Supp.V. 1987)) ("unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation"). Violation carries a maximum penalty of five years and a $50,000 fine. 42 U.S.C. § 247e.
This statute, as well as its state law counterparts, infra note 74, apply equally to organs derived from live or dead bodies.

[FN74]. See, e.g., Mich.Comp. Laws Ann. § 333.10204 (West 1985); N.Y. Pub. Health Law § 4307 (McKinney 1985); Va. Code Ann. § 32.1-289.1 (1985); see also Note, Regulating the Sale of Human Organs, 71 Va.L.Rev. 1015, 1022- 29 (1985) (analyzing federal and state restrictions on sale of organs for transplant).

[FN75]. One commentary, for example, appears to assume that the ban covers all sales of human organs. Note, supra note 29, at 644 ("The Act currently defines 'human organ' and then prohibits the sale of anything that has been included within that definition."). By their terms, however, the statutes in question forbid only sales for transplantation and therapy. In light of the rather clear authorization for donation for research and education, one could conclude that sales for these non-therapeutic purposes are permitted. Scientists in practice have been buying and selling human tissues for research apparently without interference from these statutes. See Nat'l Inst. Gen. Medical Science, 1988/1989 Catalog of Cell Lines, Oct. 1988, at iii, 3 ($60 per flask of cells; options include cells from skin and lung biopsies). Some state laws are more restrictive than the federal law, however. See, e.g., Va. Code Ann. § 32.1-289.1 (1984) (banning sale of body parts "for any reason").

[FN76]. See, e.g., Va. Code Ann. § 32.1-289.1 (1985) (exempting hair, blood and other self-replicating body fluids from a general prohibition on organ sales).
While many jurisdictions have classified the transfer of blood or other human tissue as a service rather than a sale, this position does not conflict with the notion that human tissue is property. In the leading case on the distinction between sale and service, Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792 (1954), Judge Fuld drew an analogy to "a contract to paint a picture that has been held to be a contract for work, labor and services rather than a sale, although the title to the canvas is actually transferred to the customer." Id. at 105, 123 N.E.2d at 794 (citations omitted). This is because a service was the predominant element in the transaction, and would be true even if a specific portion of the price were allocated to the physical materials.
The underlying motivation of the service characterization in Perlmutter, to avoid the application of strict product liability if blood transfers were treated as sales, id. at 106-07, 123 N.E.2d at 795, also weighs against reading this rule as a denial that blood is property.

[FN77]. See, e.g., Matthews, supra note 5, at 223-25 (discussing English cases upholding convictions for theft of blood, urine and hair).

[FN78]. As to the value of a lock of hair, see Dickens, The Control of Living Body Materials, 27 U. Toronto L.J. 142, 163 & n.110 (1977) ("A lock of the poet Byron's hair was sold in 1970 for <<PoundsSterling>> 320 (about $750).").

[FN79]. The hair and jawbone examples do involve situations where the original owner is dead. An interesting situation would arise where a brain dead person is still on a cardiopulmonary support system and a researcher sought to purchase some bodily fluid of the deceased. Cf. La Puma, Discovery & Disquiet: Research on the Brain Dead, 109 Ann. Internal Med. 606 (1988) (raising ethical concerns about proper procedures when experimenting on the brain dead).

[FN80]. 249 Cal.Rptr. 494 (Cal.Ct.App. 1988); see supra notes 53-61 and accompanying text.

[FN81]. Although Moore involved a living body, it is still analogous. A cadaver is merely a physical object that was once closely intertwined with a conscious entity (person). The same is true of a severed body part. That both are biological material that was once part of a "person" should make the rights in each roughly equivalent. The similarity becomes clearer when thinking in terms of smaller parts of a cadaver, or larger parts severed from a live body (i.e., both legs severed in an accident). See Browning v. Norton-Children's Hosp., 504 S.W.2d 713 (Ky. 1974) (amputated leg incinerated rather than buried).
What distinguishes these two cases from the case of rights relative to an intact live body is the severed nexus between the physical tissue and the person. This distinction is given further treatment at infra notes 123-28 and accompanying text.

[FN82]. While this Note is predominately concerned with rights relative to dead bodies, there is necessarily some overlap with rights relative to living bodies. Since property rights are viewed as surviving the death of their owner, a corollary to this seems to be that any such rights in a dead body also exist prior to death, though perhaps in a somewhat modified form. The interplay between rights in a live body and rights in a dead one will be explored further infra notes 123-28 and accompanying text.

[FN83]. U.S. Const. amend. XIII ("except as a punishment for crime").

[FN84]. See Model Penal Code § 212.2 (1962) (felonious restraint); id. § 212.3 (false imprisonment); Restatement (Second) of Torts §§ 35-42 (1964) (false imprisonment); see also Commonwealth v. Hughes, 399 A.2d 694 (Pa.Super.Ct. 1979) (conviction for kidnapping); U.S. Const. amend. IV (seizure).
Whether false imprisonment is truly concerned with possession of the body per se is an open question, however, given the role that the consciousness of the victim often plays in proving the tort. Compare Parvi v. City of Kingston, 41 N.Y.2d 553, 556-57, 362 N.E.2d 960, 963, 394 N.Y.S.2d 161, 163 (1977) ( "false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion") and Restatement (Second) of Torts § 42 (1964) (same) with Prosser, False Imprisonment: Consciousness of Confinement, 55 Colum.L.Rev. 847, 850 (1955) (collecting cases and arguing that "a tort of real gravity has occurred" where persons of diminished capacity for awareness are imprisoned without consciously knowing it).

[FN85]. E. Farnsworth, Contracts 836 (1982) (reluctance to require specific performance of personal service contracts based in part on the "undesirability, in some instances of imposing what might seem like involuntary servitude").
While the right not to be prevented from engaging in some form of gainful employment (though not in any specific job) is nowhere explicitly recognized in the Constitution, it seems that any attempt to forbid a person from all employment would run afoul of the due process or equal protection clause. Even under a rational basis standard it is unlikely that such a sweeping limitation on a person's ability to work would be sustained. In this sense, the permissible economic restrictions on employment seem to parallel the permissible range of regulation of property where a complete restriction on use would constitute a taking even though a partial, but economically substantial, restriction is permissible. See Penn Cent.Transp.Co. v. New York City, 438 U.S. 104 (1978).

[FN86]. See Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914); Model Penal Code § 211.1(1)(a) (1962) (assault includes bodily injury to another); Restatement (Second) of Torts § 13 (1964) (harmful contact); id. § 18 (offensive contact); see also Model Penal Code § 213.1 (rape); id. § 213.4 (sexual assault). But cf. Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967) (action for battery sustained for plate snatched from person's hand).

[FN87]. See, e.g., Ga. Code Ann. § 16-6-9 (1988) (prostitution; id. § 16- 6-2 (sodomy).

[FN88]. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding compulsory smallpox vaccination); In re A.C., 533 A.2d 611 (D.C. 1987) (upholding a forced caesarean), reh'g granted en banc, 539 A.2d 203 (D.C. 1988); L. Tribe, American Constitutional Law § 15-10 (2d ed. 1988) ("Government Control Over the Body: Decisions About Birth and Babies").

[FN89]. 408 U.S. 564 (1972).

[FN90]. Id. at 577.

[FN91]. See Monaghan, Of "Liberty" and "Property", 62 Cornell L.Rev. 405, 435 (1977) ("The difference between the existence of an interest--a matter of state law--and its significance--a matter of federal law--is firmly established in other areas of law."). Property can also arise from other sources external to the Constitution, such as federal statutory law. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (federal statutory right to social security disability benefits is a property interest under due process clause).

[FN92]. Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits constitute property requiring a hearing prior to termination).

[FN93]. Mathews, 424 U.S. at 332.

[FN94]. Monaghan, supra note 91, at 440, illustrates this with the example of a state motor vehicle statute that "invested automobiles with all the attributes of property as that term is generally understood" but provided that those rights would be ineffective as against the state and subject to confiscation. While not "property" according to state law, Monaghan concludes that "surely the Supreme Court . . . would conclude that the owner's interest had sufficient attributes of 'property' at least to implicate the due process clause." Id.
That human body parts are in a somewhat analogous position, being protected against all except the government, is demonstrated supra notes 28, 34-37, and accompanying text.

[FN95]. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) ("The hallmark of property . . . is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' Once that characteristic is found, the types of interests protected as 'property' are varied . . . ." (citations omitted)); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9-12 (1978) (property interest in continuation of utility service based on state decisional law permitting termination only for cause); Fuentes v. Shevin, 407 U.S. 67, 86-87 (1972) (property interest in right to possess goods purchased under conditional sales contract where title still remained with seller). But see, e.g., Leis v. Flynt, 439 U.S. 438 (1979) (per curiam) (right of an out-of-state lawyer to appear pro hac vice in state court is not a property interest protected by the due process clause); Bishop v. Wood, 426 U.S. 341, 343-47 (1976) (no property interest in employment, notwithstanding classification as "permanent employee").
Occasionally the Court will protect an interest without pinning a label on it. See Bell v. Burson, 402 U.S. 535, 539 (1971) ("Suspension of issued [driver's] licenses thus involves state action that adjudicates important interests of the licensees [thereby implicating the due process clause].").

[FN96]. Note the protection of government entitlements that are commonly thought of as the "new property." See L. Tribe, supra note 88, at 685-86.

[FN97]. This approach is no more than an application of the common-law method to a broader set of "precedents." In the application of this method hopefully some insights will be generated as to what underlying characteristics define this broader category of property.

[FN98]. 63A Am. Jur. 2d Property § 1 (1984) ("As a matter of legal definition, 'property' refers not to a particular material object but to the right and interest or domination rightfully obtained over such object . . . .").

[FN99]. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003 (1984) (implicitly accepting bundle of rights theory of property); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("Physical occupation of another's property . . . chops through the bundle, taking a slice of every strand"); see also Matthews, supra note 5, at 195 ("If, on the other hand, 'property' in those contexts [the Theft Act and elsewhere in legal literature] refers to legal rights in relation to particular physical matter, then we must decide whether the legal rights need amount to full ownership in the commercial sense (when human tissue will not be 'property'), or whether a bundle of legal rights affecting human tissue and amounting to anything less than full ownership in the commercial sense will do.").

[FN100]. See Note, supra note 16, at 218; see also Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 Colum.L.Rev. 1667, 1667 (1988) ("classical liberal conception of property embraces a number of broad aspects or indicia, often condensed to three: the exclusive rights to possession, use, and disposition").

[FN101]. The most obvious means of subdivision would be along the time axis, as with leases.

[FN102]. Radin, supra note 100, at 1676.

[FN103]. See R. Epstein, Takings: Private Property and the Power of Eminent Domain 35-104 (1985) (prima facie takings include both partial restrictions and total confiscations of property).

[FN104]. Cf. B. Ackerman, Private Property and the Constitution 1-5 (1977) (ordinary observer approach contrasted with scientific policymaker approach). [FN105]. This is obviously a necessary feature of property rights in a society in which more than one person is capable of having property rights.

[FN106]. While the right to possess for the purposes of burial is well recognized at common law, see supra notes 66-71 and accompanying text, courts have had considerable difficulty in characterizing the right as property. Although the concept of quasi-property is now widely accepted, a long line of English and American cases previously held there to be no property rights in a dead body. E.g., Williams v. Williams, 20 Ch. D. 659, 665 (1881) ("no property in a dead body"); Gray v. Southern Pac. Co., 21 Cal.App. 2d 240, 246, 68 P.2d 1011, 1015 (Dist.Ct.App. 1937) ("the law recognizes no right of property as such in the dead body").
The earlier English cases suffered from the historical anomaly that all matters concerning dead bodies were under the purview of the ecclesiastical courts and hence were never available for common-law analysis. See In re Estate of Moyer, 577 P.2d 108, 110 n.5 (Utah 1978); Note, supra note 16, at 226. As the ecclesiastical courts waned, the English common-law courts nonetheless continued to apply the old principles, thereby finding no property right to exist. When one examines the early precedents more closely, they turn out to be highly questionable endeavors and their conclusion that no property right can exist is seen to be not based on adequate precedent or reasoning. See Matthews, supra note 5, at 208-14 (criticizing early English authorities for the no-property rule); Note, Sale of Human Body Parts, supra note 29, at 1241- 45 (noting heavy criticism of early English authorities).
Some early American cases merely imported the teachings of the English cases and held that there was no property right in a dead body. See, e.g., Enos v. Synder, 131 Cal. 68, 69, 63 P. 170, 171 (1900). This assertion was not credible in the face of the well-established rights of the next of kin, and many courts held that there was at least a quasi-property right in the body. See, e.g., Reniham v. Wright, 125 Ind. 536, 25 N.E. 822 (1890); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904).
The appellation "quasi-property" adds little to any thoughtful analysis of rights in the body and merely illustrates the difficulties courts have in adapting to new circumstances. Even if this right alone were not sufficient to constitute property, when combined with the various other rights discussed relative to the body, the entire bundle certainly seems adequate. In addition, it is not the common-law answer to particular questions that necessarily interests us here, but rather the common-law method that may well yield a different answer when applied to a redefined group of rights relative to the body.

[FN107]. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights."); Kaiser Aetna v. United States, 444 U.S. 164, 179-80 (1979) ("'right to exclude,' so universally held to be a fundamental element of the property right").

[FN108]. At least one court has recognized that rights in the body are sufficient to implicate the due process clause. See Arnaud v. Odom, 870 F.2d 304 (5th Cir.1989) (section 1983 suit involving wrongful autopsy).
One must be careful to avoid the logical fallacy inherent in the argument that "property implies a right to exclude; you have a right to exclude from your body; therefore your body is property." If property could be independently defined, the preceding argument would be a fallacy. In this case, however, the right to exclude is a property right, almost definitionally. Further, there are no independent means of defining property unless we limit ourselves to those things that were property at the time the Constitution was ratified. This method is inadequate, however, since it does not allow for any change.

[FN109]. See, e.g., Silver, supra note 2, at 715.

[FN110]. 444 U.S. 51 (1979).

[FN111]. Id. at 65-66.

[FN112]. See, e.g., In re Marriage of McManama, 272 Ind. 483, 488, 399 N.E.2d 371, 374 (1980) (Hunter, J., dissenting) ("It is true that a professional degree lacks many of the attributes of tangible property. . . . However, many courts have found that intangible and nontransferable items should be treated as property for some purposes."); cf. Inman v. Inman, 578 S.W.2d 266, 269 (Ky.Ct.App. 1979) (dental license is marital property).

[FN113]. A prescription drug is a good example. A person in possession of properly prescribed pain killers could rightly claim the drugs to be their property. Yet this property may not be sold or given away, its use is most likely limited, and it probably could not be passed on through inheritance. Cf. 21 U.S.C. §§ 822(a), 841(a) (1988) (unauthorized manufacture, distribution, dispensation or possession with intent to do the previous, of controlled substances unlawful). If the police confiscated the drugs, however, there is little doubt that they would be considered property, notwithstanding the very limited rights of the owner.

[FN114]. See Restatement (Second) of Property (Landlord and Tenant) § 15.2(2) (1976) ("A restraint on alienation without the consent of the landlord of the tenant's interest in the leased property is valid . . . ."). The Restatement qualifies the ability to restrain alienation slightly but ultimately permits even absolute restraints if freely negotiated as part of the lease. Id. Some states have taken a modified position from that of the Restatement. See, e.g., N.Y. Real Prop. Law § 226-b (McKinney 1989) (consent by landlord for sublet or assignment may not be "unreasonably withheld").

[FN115]. See supra notes 92-93 and accompanying text.

[FN116]. To the extent that one is concerned with a common-person's perception of property a tangible item will be more easily accepted as property.

[FN117]. Perry v. Sindermann, 408 U.S. 593, 597-98 (1972).

[FN118]. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985).

[FN119]. See supra note 94.

[FN120]. 407 U.S. 67 (1972).

[FN121]. Id. at 86. The goods included such things as a stove, a stereo, a bed and a kitchen table that had been purchased under conditional sales contracts. Id. at 70-71. Appellants were entitled to possess the goods, but did not acquire full title until they had paid the last installment of the purchase.

[FN122]. Id. at 86 (citations omitted).

[FN123]. See generally A Modern Introduction to Philosophy 172-286 (P. Edwards & A. Pap 3d ed. 1983) (collecting essays debating the relationship between mind and body).

[FN124]. See Uniform Determination of Death Act, 12 U.L.A. 310 (Supp. 1989) (table of adopting jurisdictions); see also Cal. Health & Safety Code § 7180 (West Supp.1990) (updated table of adopting jurisdictions). Many states that have not adopted the Uniform Act have adopted analogous statutes or reached the same result through judicial decision. See Smith, Legal Recognition of Neocortical Death, 71 Cornell L.Rev. 850, 853-55 (surveying the 40 states that have adopted a whole brain definition of death--33 by statute, 7 by judicial opinion).

[FN125]. Some commentators might consider this statement overbroad, arguing instead that it is the capacity to maintain integrated biological functioning, not the capacity for mentation, that is the line dividing life and death. See, e.g., Capron, Anencephalic Donors: Separating the Dead From the Dying, Hastings Center Rep., Feb. 1987, at 5, 7 (death is the "absence of the integrated functioning of heart, lungs, and brain," whether determined by whole brain death standards or by traditional cardiopulmonary standards). According to this view, individuals in an irreversible coma, or anencephalic infants who lack the upper brain hemispheres entirely, are not considered dead since the brain stem can maintain integrated biological functioning notwithstanding the lack of any capacity for mentation. Id. at 7-8.
Other commentators have defended the capacity for mentation as the appropriate line for defining life and death. See, e.g., Friedman, Taking the Camel by the Nose: The Anencephalic Infant as a Source for Pediatric Organ Transplants, 90 Colum.L.Rev. (forthcoming May 1990) (personhood defined by the capacity for mentation); Smith, supra note 124, at 875 (advancing a model statute for neocortical death based upon "irreversible loss of consciousness and cognitive functions"). The increased willingness of society and the medical profession to passively terminate the lives of permanently comatose patients by withdrawing nutrition and other life support is taken as evidence of de facto support for the view that such patients are dead.
While the latter view appears to be the more persuasive approach, it need not be accepted for the purposes of this Note. Even the whole brain death approach accepts the distinction between a live "person" and a biologically active body that lacks brain function and is therefore dead. Once personhood is thus separated from biological existence the arguments distinguishing liberty from property can still be made, albeit with some minor adjustments to emphasize integrative capacity in addition to mentation.

[FN126]. Restatement (Second) of Torts § 18 comment c, at 31 (1964) ( "anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability . . . such as clothing or a cane or, indeed, anything directly grasped by the hand").
Notice that we could follow this reasoning one step backward and discover that the only reason that the body is protected from nonharmful, but offensive, touching is that it is thought to be so closely connected with the "person" it houses that an offensive contact would be an affront to dignity quite independent of physical harm.

[FN127]. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (battery is "the unpermitted and intentional invasion of the plaintiff's person and not the actual harm done to the plaintiff's body"); Restatement (Second) of Torts § 18 comment c, at 31 (1964) (the "grievance [battery] consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body" (emphasis added)).

[FN128]. A simple example will illustrate the importance of context. Suppose William had recently had his tonsils removed, and as a keepsake chose to have them placed in a jar and displayed prominently on his mantlepiece. Should Sandra one day take a hammer and smash the jar, and William's tonsils, to pieces, it seems plain that no battery has occurred. While William may have a variety of legal remedies for such behavior, battery is the least likely of the bunch. Had Sandra made a similar attack on William's tonsils prior to their removal, though perhaps smashing them somewhat less effectively, battery would be a natural and correct description of her actions.

[FN129]. See Labaton, supra note 14, at D2, col. 1 (Moore cell line valued at approximately $3 billion); see also Andrews, supra note 29, at 31 ("Many markets have developed for seemingly worthless by-products such as sawdust.").

[FN130]. Property rights are often seen as a tool for allocating scarce resources. See R. Posner, Economic Analysis of the Law 10 (1973) ("[L]egal protection of property rights has an important economic function: to create incentives to use resources efficiently."); Demsetz, Toward a Theory of Property Rights, 57 Am.Econ.Rev. Papers & Proc. 347 (1967) ("If the main allocative function of property rights is the internalization of beneficial and harmful effects, then the emergence of property rights can be understood best by their association with the emergence of new or different beneficial and harmful effects."). As the body becomes subject to competing demands for its use, the rules that allocate control over its disposition play the traditional role of property.

[FN131]. Reich, The New Property, 73 Yale L.J. 733 (1964) (statutory entitlements a property interest protected by due process clause).

[FN132]. Property protected by the takings clause includes land, chattels and certain intangibles such as trade secrets. See, e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (public access easement to land); Hudson v. Palmer, 468 U.S. 517 (1984) (personal property); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (Interest "cognizable as a trade-secret property right under [state] law . . . is protected by the [takings clause].").

[FN133]. Flemming v. Nestor, 363 U.S. 603, 611 (1960) (eliminating rights to social security benefits to persons deported for past Communist Party membership does not violate fifth amendment).

[FN134]. Hodel v. Irving, 481 U.S. 704, 716 (1987) ("Even the United States concedes that total abrogation of the right to pass property is unprecedented and likely unconstitutional.").

[FN135]. See supra note 90 and accompanying text.

[FN136]. Cf. Tribe, supra note 88, § 10-9, at 686 ("For the first time, the Court [in Goldberg v. Kelly], recognized as entitlements interests founded neither on constitutional nor on common-law claims of right but only on a state-fostered (and hence justifiable) expectation . . . ." (footnotes omitted)).
Part of the difference may also relate to the magnitude of the change. Perhaps it is an important yet infrequently noted purpose of the takings clause to force change to be either incremental or compensated since change over time is less likely to be systematically biased against one particular group in society. Cf. Clark, Contracts, Elites, and Traditions in the Making of Corporate Law, 89 Colum.L.Rev. 1703, 1732 (1989) ("The traditional rules are more likely to reflect an averaging process than are rules adopted from scratch by today's elite: . . . [they are] less likely to be especially harmful to [a particular] subject.").

[FN137]. Procedural modifications of the underlying right would not yield the same result. If such were possible, the protections of the due process clause would be effectively vitiated. This would return us to the no longer accepted position of Justice Rehnquist in Arnett v. Kennedy, 416 U.S. 134, 154 (1974) (recipients of statutory entitlements must take the "bitter"-- modification of procedural rights--with the "sweet"). See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540-41 (1985). Substantive alterations are different, since it is the right itself, not merely how it is enforced, that is being changed. While this line may be difficult to draw at times, it is an unavoidable task given the notion of procedure as distinct from the underlying right that is implicit in the Constitution.

[FN138]. Cf. Hudson v. Palmer, 468 U.S. 517, 539 (1984) (O'Connor, J., concurring) ("The Constitution requires the government, if it deprives people of their property, to provide due process of law and to make just compensation for any takings.").

[FN139]. Where the deprivation results from a change in the underlying law, proper legislative enactment may be all the process that is due. Cf. Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984) ("[N]othing in the Constitution suggests . . . that government must provide for such [public] participation."); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (When the state raises taxes, "no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it . . . .").

[FN140]. In contrast, because the organic law defining certain property is at least partly composed of a sort of overriding common law, a statutory alteration would not be a change in the organic law, but a change acting against a pre-existing and independent organic law, thus requiring compensation.

[FN141]. These cases are difficult to find because whenever the government seeks to withdraw some form of statutory right it generally does so as to a whole class of persons and its action can therefore be conceptualized as eliminating a right rather than as taking an otherwise recognized right. The two instances where the government does act as against rights tend to be covered by the constitutional limitations on ex post facto laws and bills of attainder. In the first instance the government acts against a right that is viewed as having already accrued. In the second case the government singles out an individual for treatment different from those similarly situated. Due process limitations on retroactive legislation would also cover this type of situation, at least in extreme cases. The analysis in this Note of the taking- deprivation distinction suggests that either of those cases could just as easily be conceptualized as a taking of the statutory entitlement in question and remedied through direct compensation. But cf. Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-28 (1986) (statute imposing additional financial liability for past actions not a taking, only a regulation adjusting benefits and burdens of economic life).

[FN142]. An interesting question now arises with the advent of the temporary takings doctrine of Fist English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), as to whether the government will be constitutionally required to reimburse plaintiffs for the time they were denied benefits for reasons subsequently determined to be incorrect. For example, where a state worker is suspended without pay during the investigation of potential wrongdoing, should the worker be reimbursed for the pay suspended if the worker is eventually cleared of everything? Cf. Michelman, Takings, 1987, 88 Colum.L.Rev. 1600, 1621 (1988) (suggesting interpretation of First English that would require compensation only for restrictive regulations intended to be indefinite but subsequently removed; expressly temporary restrictions are predicted to raise a "new and unresolved question").

[FN143]. History and tradition may play a more important role in determining the substance of a right than in determining its nametag. In the case of cadavers, new circumstances do not undermine the substantive expectations, they in fact may provide new reasons for having such expectations. Changed circumstances, and in particular new technology, have provided reasons for altering our categorization of rights in the body, however, since the myriad of new uses for the body has enhanced its similarity to more traditional forms of property.

[FN144]. 481 U.S. 704 (1987).

[FN145]. The reconstruction of Hodel as involving a taking of an entire "piece" of property illustrates the use of conceptual severance. See supra notes 102-04 and accompanying text. The difficulties underlying this approach may be avoided, however, by the Supreme Court's focus on certain twigs with sufficient historical importance to be considered property in their own right. So far, the right to exclude, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and the right to pass property through descent or devise, Hodel, have achieved this status.

[FN146]. See supra note 38. One commentator, in the course of proposing a mandatory organ draft, has considered the takings question. See Silver, supra note 2, at 712-15. He concludes that the rights in a dead body are not property, and therefore the fifth amendment is not applicable. This conclusion is based on the premises that the quasi-property right of the next of kin is not property; that the power to make a will is not constitutionally protected property; and that the lack of an exchange value removes the body from the category of property. As to the first premise, Professor Silver ignores his own earlier recognition that state law is not exclusively controlling on the definition of property. With regard to the right to devise property, he is less than current in his research, apparently unaware of the decision in Hodel v. Irving, 481 U.S. 704 (1987). Finally, with regard to the importance of exchange value, Professor Silver is again out of date, citing only one case, Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), which was decided before Andrus v. Allard, 444 U.S. 51 (1979). Most unfortunate of all is Professor Silver's failure to deal with the issues raised by categorical abolition of common-law rights, an issue he raises but then leaves unresolved. Silver, supra note 2, at 714.

[FN147]. Laws of this type would not face due process problems because the right to respond would be pointless if the objection had no potential weight. Whether such laws resulted in takings would be more difficult to evaluate. Because the law itself would eliminate part of the statutory basis for property rights, a taking would have to be based upon the pre-existing common-law rights in the body. Arguments based upon statutory rights as against third parties could also be used to establish the existence of a property right to be taken. But cf. supra note 39 (Arkansas and California reasonable efforts laws permit removals by any hospital, not just coroners).

[FN148]. Van Alstyne, Cracks in "The New Property": Adjudicative Due Process in the Administrative State, 62 Cornell L.Rev. 445, 483 (1977). Professor Van Alstyne gives as an example "one's own pair of shoes, to do with as one damned well likes . . . and to know fully the freedom that goes with the feeling that 'these things, at least, are truly mine."' Id. at 483-84. It is hard to imagine an object that more easily fits this mold than one's own body. As the one physical object having the longest and most intimate relationship to any other person that is possible, it should carry the presumption of being yours more than any other item.

[FN149]. Professor Radin, using a similar approach keyed to the normative importance of the property in question, comes to a somewhat different conclusion. Radin, supra note 100, at 1687-96. Finding certain items to be so indispensably tied to a person's sense of self and well-being, she would provide even greater protection for those items than exists under current jurisprudence. Thus, for example, a person's home would fall into a category of "personal property" that could not be taken by eminent domain for merely instrumental purposes. Id. at 1690-91. This is in contrast to fungible property such as a building procured strictly for investment purposes which would be subject to the currently accepted (and perhaps more lenient) principles of eminent domain. Id. at 1689. This position goes much further than the one suggested in this Note, but is by no means inconsistent with the basic claim that the body should get at least the protection afforded to property.

[FN150]. P. Collins, Don't Let Him Steal Your Heart Away (1982).

[FN151]. Nonintegrated refers to the condition where body parts are no longer so inextricably intertwined with a "person," see supra notes 126-28 and accompanying text, as to directly implicate the values of liberty and privacy. Cadaveric organs necessarily fall into this category, at least until they are transplanted into a live host.

[FN152]. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring).

[FN153]. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

[FN154]. The issue of whether the requirements of procedural due process under the fourteenth amendment are equivalent to the requirements under the fifth amendment will not be addressed by this Note. It will be assumed that they are identical, and the various arguments about the impact of federalism concerns will be left for another day.

[FN155]. Grad v. Kaasa, 68 N.C.App. 128, 131, 314 S.E.2d 755, 758 ("It is clear that a medical examiner is a public official . . . ."), rev'd on other grounds, 312 N.C. 310, 321 S.E.2d 888 (1984); cf. State v. Powell, 497 So. 2d 1188 (Fla. 1986) (assuming the issue of state action but finding statute authorizing corneal tissue removal to be constitutional), cert. denied, 481 U.S. 1059 (1987); Georgia Lions Eye Bank, Inc. v. Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), cert. denied, 475 U.S. 1084 (1986) (same).

[FN156]. The presumed consent laws require that the body be under the coroner's jurisdiction for the purposes of performing an autopsy before the nonconsensual removal of organs may be authorized. See supra notes 34-35 and accompanying text.

[FN157]. Lawyer v. Kernodle, 721 F.2d 632, 635 (8th Cir.1983) (employee of company hired by coroner to conduct autopsy "was performing those duties under color of state law").

[FN158]. 42 U.S.C. § 1983 (1982).

[FN159]. Cf. L. Tribe, supra note 88, at 664-65 (discussing recent cases holding that negligent action by state agents does not constitute a deprivation).

[FN160]. Mathews v. Eldridge, 424 U.S. 319, 339-40 (1976) (temporary lack of disability benefits between the time of termination and the post-termination hearing); North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975)(temporary freeze on bank account between garnishment and the posting of a bond); Fuentes v. Shevin, 407 U.S. 67, 84-85 (1972) (time between replevin of property and post-replevin hearing).

[FN161]. Cf. In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) ("Because . . . there is a quasi-property right in a dead body . . . under some circumstances due process may require that the interested relative be given notice of an intended autopsy or disinterment."). The court did not need to decide the issue since the relative of the deceased had received a full hearing.

[FN162]. 424 U.S. 319 (1976).

[FN163]. Mathews involved the issue of "whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of Social Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing." Id. at 323.

[FN164]. Id. at 335; see Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987) (utilizing Mathews balancing test).

[FN165]. See supra notes 34-37 and accompanying text.

[FN166]. See supra notes 39-41 and accompanying text.

[FN167]. See supra notes 27-28 and accompanying text.
The question could be raised as to whether the existence of the statute authorizing the coroner's action is in itself notice. See Fuller v. Marx, 724 F.2d 717, 719 (8th Cir.1984) (coroner's failure to return internal organs of prisoner to next of kin did not violate due process since statute established mechanism to request such return). This would be analogous to criminal statutes that are presumed to serve as notice to all potential violators. Cf. Model Penal Code § 2.04(3)(a) (1962) (ignorance of the law is a defense where statute or enactment "has not been published or otherwise reasonably made available prior to the conduct alleged"). While the criminal field may find it necessary to rely on such a fiction, it is somewhat more reasonable in that context since allowing such an "ignorance" defense would substantially undermine the criminal law. But cf. Lambert v. California, 355 U.S. 225, 229-30 (1957) ("Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.").
Additionally, in criminal cases it is the individual who is acting and the state has no way of predicting that behavior and giving actual notice of the law in a more timely fashion. In the organ donor case it is the state that is acting against the individual and obviously has an opportunity to at least attempt timely notice. Finally, one could make the argument that criminal acts are often mala in se and hence the person should have notice of the wrongness of her behavior due to societal norms that exist.

[FN168]. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436-37 (1982); see also Hudson v. Palmer, 468 U.S. 517, 532 (1984) ("[P]ostdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action.").

[FN169]. There are some cases where even a deprivation pursuant to authorized procedures did not necessitate predeprivation procedures due to the emergency nature of the action that made such procedures impossible. See North Am. Cold Storage Co. v. Chicago, 211 U.S. 306, 315-16 (1908) (ex parte seizure and destruction of contaminated poultry); L. Tribe, supra note 88, at 721-22 (examples of emergency situations).
Even in many of these cases, the issue in reality concerned the necessity of a predeprivation evidentiary hearing. Almost all the plaintiffs had been given at least notice and a minimal opportunity to respond prior to the deprivation involved. See Barry v. Barchi, 443 U.S. 55, 64 (1979); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond.").

[FN170]. The possibility of treating this as a liberty interest was averred to at supra notes 63-64 and accompanying text.

[FN171]. See Note, Sale of Human Body Parts, supra note 29, at 1222 (some religious groups, such as Orthodox Jews, might have strong objections to organ removal).

[FN172]. See, e.g., J. Marshaw & R. Merrill, Administrative Law 193 (2d ed. 1985) (for termination of AFDC benefits, hearings are requested in "only two or three percent of the potentially appealable determinations." Of these, the appellant is successful in "about twenty percent of the reported appeals."). Assuming that all government terminations of benefits are contrary to the desires of the beneficiaries, this yields an overall success rate of only 0.6%. By contrast, 100% of individuals given the opportunity to object, and in fact objecting, would be successful in preventing the coroner from removing organs for transplantation under presumed consent or reasonable efforts laws.
While the likelihood of success has been disavowed as a factor to be considered, this seems inaccurate. The strength of the property interest and the likelihood that alternative procedures will be useful in correcting mistakes are both related to the likelihood of success. For instance, if unemployment benefits are payable only for a six month period at which point they terminate, there is little persuasive force in requiring a hearing before termination since there is no chance of a different outcome. In the government benefit termination cases there is likewise little doubt that were the government's claims correct the individuals would have no further entitlement to benefits, yet the uncertainty concerning the facts, and therefore the possibility that the plaintiffs might have a further claim to benefits, was enough of a property interest to require some form of process.

[FN173]. While a person who is just above the cutoff for welfare benefits may still have a very strong interest in receiving those benefits, the state has chosen to give that interest no legal value since such a person has no claim to welfare under state law. If we want to look at it from the side of a deserving recipient who might be wrongly deprived of her benefits, then perhaps the social value test is helpful. Nonetheless, such a test unavoidably results in the injection of the judge's personal value system with no external means of ordering the values of different property interests created by the state.

[FN174]. See supra notes 35, 39 and accompanying text.

[FN175]. See Mathews v. Eldridge, 424 U.S. 319, 341 (1976) (limited time of deprivation because of post-deprivation hearing).

[FN176]. Assume the state takes an individual's car without notice or opportunity to respond. The fact that the individual would have donated the car to the state if asked does not make the original deprivation any less erroneous, though it may well decrease the likelihood that the individual will sue.

[FN177]. The exclusion from the balance of the value of actively choosing to donate tissue, see Murray, supra note 29, at 35, something very difficult to assign a weight to, serves to eliminate one possible element of uncertainty. Since this Note concludes that plaintiffs are due more process than currently provided, the exclusion of this factor does not affect the outcome. Were a court to find that the balance was close but ultimately hold in favor of the current laws, the consideration of this additional element of private interest might be of importance.

[FN178]. See UAGA(1987) prefatory note, 8A U.L.A. 2 (Supp.1989) (citing 1985 Gallup Poll indicating 75% approve of donation but only 27% very likely to donate own organs and only 17% actually completed donor cards); N.Y. Times, Jan. 17, 1968, at 18, col. 3 (70% willing to donate according to a Gallup poll taken shortly after first successful heart transplant).

[FN179]. See Note, supra note 31, at 367 (70% general willingness to donate "drops to 56% when a specific organ is mentioned").

[FN180]. Id. (less than 10% in most states).

[FN181]. See, e.g., id. ("36% would give permission to remove the kidneys of a dead relative").

[FN182]. See Fusari v. Steinberg, 419 U.S. 379, 383 (1975) (noting in dicta that "the reversal rate of appealed denials of [unemployment] benefits was significant, ranging from 19.4% to 26.1% during the periods surveyed").

[FN183]. Note the alternative where the tissue is used for research and the deprivation could thus be only temporary. Even such a temporary loss of control, however, is a deprivation. For practical purposes, however, no such return is likely. Cf. Gray v. Southern Pac. Co., 21 Cal.App.2d 240, 247, 68 P.2d 1011, 1015 (Dist.Ct.App. 1937) ("[T]he return of the removed organs . . . to the plaintiff (if such were possible) . . . could have caused her only embarrassment, and, perhaps, horror . . . .").

[FN184]. See supra note 39.

[FN185]. If the earlier assumption that any deprivation is wrongful is correct, then every person contacted, even those who consent, would eliminate an erroneous deprivation of the right to make the choice at all.

[FN186]. In the example of welfare benefits, while the government may have an interest in denying benefits to one who does not deserve them, the government can hardly have an interest in erroneously denying benefits to one who does deserve them. This is so even though the provision of benefits costs the government more money. The imposition on the government of a cost that it has determined it is willing to pay in order to protect a right can hardly be weighed in on the other side of the scale when assessing the governmental interest at stake.

[FN187]. The list of authorized donors is part of state law, hence there should be no confusion as to whom to ask in what order. If none of them are available after reasonable efforts, the coroner would be permitted to proceed with removal.

[FN188]. E. John & B. Taupin, Don't Go Breaking My Heart (1976).

[FN189]. U.S. Const. amend. V, cl. 4.

[FN190]. See Chicago B. & Q.R.R. v. Chicago, 166 U.S. 226, 234-35 (1897).

[FN191]. See Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987); Hodel v. Irving, 481 U.S. 704 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).

[FN192]. See e.g., First English, 482 U.S. at 318-19 ("It is axiomatic that the Fifth Amendment's just compensation provision is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."' (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960))).

[FN193]. See G. Stone, L. Seidman, C. Sunstein & M. Tushnet, Constitutional Law 1461 (1986) ("[T]he central problem in Mahon and Miller remains: how to distinguish between a taking' and regulation.' Almost all government action . . . diminishes the value of some people's property and increases the value of the property of other people.").

[FN194]. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

[FN195]. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982); see also Seawall Assoc. v. City of New York, 74 N.Y.2d 92, 103, 542 N.E.2d 1059, 1063, 544 N.Y.S.2d 542, 546 (1989) (forcing property owners to rent rooms held a physical invasion). This category of per se takings apparently continues to reach the support of the Supreme Court. See Michelman, supra note 142, at 1608 ("The [Nollan] decision seems most satisfactorily understood as a further manifestation . . . of the talismanic force of 'permanent physical occupation' in takings adjudication.").

[FN196]. See First English, 482 U.S. at 329 (Stevens, J., dissenting) ("even minimal physical occupations constitute takings").

[FN197]. That the right transfers immediately upon death, at least where the contrary intent of the deceased is not known, can be seen from state laws authorizing the next of kin to make the decision concerning donation, and their immediate right to possession for the purpose of burial (except for whatever necessary delays which result from a required autopsy or other health regulation).
This presents an issue as to whether the state law authorizing the next of kin to make such decisions prior to probate of the will itself constitutes a taking. Cf. Quay, supra note 40, at 892, 923 (arguing that placing the burden on an individual to notify her next of kin about her objection to organ donation impermissibly burdens her right to control the disposition of her body). In fact, if we assume that the property remains vested in the estate, such laws have virtually the same characteristics as the presumed consent laws covering coroners. The short answer is that it is reasonable to assume that the next of kin has the interests of the deceased in mind, especially where no contrary evidence exists and that it would be impractical to probate a will in the timeframe with which we are concerned.
A strong argument could be made, however, that reasonable efforts to determine the decedent's wishes be made before turning to the next of kin. This would at least involve checking for a donor card or the person's medical records if available.

[FN198]. The action does not, in fact, eliminate these strands in the bundle. Instead it merely alters the procedures through which they can be exercised. This brings us back to the due process issues discussed earlier. Given that the rights to descent and devise still exist, the government's action cannot be viewed as a denial that a property right continues, but must be viewed as acting in disregard of that right by physically appropriating the tissue. As such, it would still be within the per se rule for physical occupations.

[FN199]. 481 U.S. 704 (1987).

[FN200]. 25 U.S.C. §§ 2201-2211 (1982 & Supp. V 1987).

[FN201]. 481 U.S. at 709. 25 U.S.C. § 2206 has since been modified.

[FN202]. By aggregating the total set of interests lost to each estate (interests in different pieces of land), Justice O'Connor seems to be adopting a "full net property" approach in evaluating the action. Having done this, Justice O'Connor fails to carry it through by not looking to see how much of the decedent's land interests remained unaffected.
The other aspect of this step is that while conceding that the income to be derived from these interests was de minimis, she uses the total value of the land as the measure of its worth. The fact that this land was not alienable, and hence its only value was the income it could produce, makes this step questionable.

[FN203]. 481 U.S. at 715 (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).

[FN204]. Id. at 716.

[FN205]. Id. at 704.

[FN206]. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).

[FN207]. In actuality, a close look at the Court's opinions would seem to indicate that the public use limit has merely taken on another role. What one now finds is that uses which substantially benefit the public (i.e., what would have previously been public use) are no longer even considered a taking. Uses which benefit the public only indirectly (what might have been thought of as nonpublic uses) are now considered public uses but require compensation. Cf. Michelman, supra note 142, at 1611-13 & n.60 (discussing the introduction of a means/ends analysis into the takings jurisprudence by Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), whereby a regulation which substantially furthers a government interest will survive a takings challenge. Regulations insubstantially advancing such purposes remain valid but require compensation.). What one really is witnessing is a "ratcheting down" of the protection of the clause as a whole.

[FN208]. See supra notes, 29, 73-75 and accompanying text.

[FN209]. For example, sales for non-transplant purposes. Id.

[FN210]. Id.

[FN211]. As alternative uses for human tissue expand, and presuming that it remains legal to sell body parts for those uses, markets may develop and the values reflected therein may begin to reflect more accurately the value of the organs.

[FN212]. Note, Compulsory Removal, supra note 2, at 700.

[FN213]. Id.

[FN214]. Family heirlooms, personal letters or diaries, one-of-a-kind family photographs, are just a few examples of items whose value is not reflected in the market. Nonetheless, these can be the subject of conversion and result in more than nominal damages. See Standard Oil Co. of N.J. v. Southern Pac. Co., 268 U.S. 146, 155-56 (1925) ("Where there is no market value . . . [the value may be taken to be] the sum that in all probability would result from fair negotiations between an owner willing to sell and a purchaser desiring to buy."); Rhoades, Inc. v. United Air Lines, Inc., 224 F.Supp. 341, 344 (W.D.Pa. 1963) ("Where there is the destruction of personal property without a market value . . . damages [are] based upon its special value to the plaintiff"), aff'd, 340 F.2d 481 (3d Cir.1965); Szekely v. Eagle Lion Films, Inc., 140 F.Supp. 843, 849 (S.D.N.Y. 1956) ("Even if there were no other market . . . [plaintiff] is entitled to damages 'based upon its special value to him."'), aff'd, 242 F.2d 266 (2d Cir.), cert. denied, 354 U.S. 922 (1957).

[FN215]. See Kirby Forest Indus. v. United States, 467 U.S. 1, 10 n.14 (1984) ("Other measures of 'just compensation' are employed only 'when market value [is] too difficult to find, or when its application would result in manifest injustice to owner or public . . . .' United States v. Commodities Trading Corp., 339 U.S. 121, 123 (1950).").

[FN216]. See supra note 30.

[FN217]. Id.

[FN218]. See Michelman, supra note 142, at 1603 (describing "nuisance exception doctrine" under takings jurisprudence).

[FN219]. Mugler v. Kansas, 123 U.S. 623, 665 (1887) ("[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.").

[FN220]. Cf. Quay, supra note 40, at 915 (state's use of cadaver for transplant concerns a "particular private good obtainable through use of a corpse when that utilization averts no public evil that the corpse could inflict on others"); id. at 925 ("A power conceded for the avoidance of public harm [the turning over of bodies in certain situations to coroners or medical examiners] has now been quietly usurped for private purposes.").

[FN221]. Cf. Chip Steak, Inc. v. Hardin, 353 F.Supp. 438, 444-45 (N.D.Cal. 1973) (Agricultural Department may take meat samples, without compensation, in course of inspection), aff'd, 502 F.2d 764 (9th Cir.1974), cert. denied,420 U.S. 926 (1975).

[FN222]. See supra notes 66-67.

[FN223]. See In re Johnson, 94 N.M. 491, 494, 612 P.2d 1302, 1305 (1980) ("[U]nder some circumstances due process may require that the interested relative be given notice of an intended autopsy or disinterment.").

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