On Aug. 18, 2016, Governor Andrew M. Cuomo signed into law an amendment to Public Health Law §4211, prohibiting the use of unclaimed bodies by medical and mortuary schools as cadavers unless: (i) the decedent was registered as an organ donor, or (ii) the decedent, decedent’s spouse, or decedent’s next of kin provided written consent. This new law ends the longstanding practice whereby unclaimed bodies were sent to students to practice autopsy, embalming, dissection, and the like. This change in the statute follows numerous news stories and court cases which debated the practice of sending unclaimed bodies to schools for students’ use, and reinforces a decedent’s family’s common law right of sepulcher—the “absolute right to immediate possession of a decedent’s body for preservation and burial.”1
Pre-Amendment PHL §4211
Prior to the new law, a medical examiner, morgue, funeral director or other place possessing or having charge, custody or control over bodies was required to deliver any unclaimed body to a medical school, mortuary school or the like for dissection, autopsy, or study, provided a relative or friend of the decedent had not claimed the body within 48 hours after death or 24 hours after notification of such death. Although the statute provides that no body shall be delivered to a school if “the deceased person is known to have a relative whose place of residence is known or can be ascertained after reasonable and diligent inquiry,”2 the requisite amount of “inquiry” and sufficiency of any notification are questions of fact. This leaves open the possibility that distant or estranged relatives may be deprived of their right to bury the decedent if they are not “known” relatives to the hospital or morgue.
