An autopsy is a medical examination of a dead body, performed in order to learn about the circumstances of the person’s death. Autopsies are done either before burial or after burial (which requires exhumation). Exhumations or disinterments refer to the removal of a dead body or human remains from a burial site.
Both autopsies and exhumations raise public health and welfare issues—not to mention that such acts may offend moral and religious beliefs held by surviving family members. For these and other reasons, numerous laws govern situations in which examiners must conduct autopsies, and to what extent, if at all, next of kin can object. State and local laws also cover criminal and civil litigants’ ability to obtain exhumation orders from a court, and how judges weigh conflicting interests of the party asking for the evidence against objections of next of kin.
This article will review common legal reasons for autopsies and exhumation orders.
Common Legal Reasons for Autopsies
State and federal statutes dictate the situations in which an autopsy can be done, which fall into two camps.
Official inquests or autopsies. Official autopsies are required by law due to the nature of the decedent’s death.
Evidentiary autopsies may be ordered by a judge in a civil or criminal context, to provide evidence in a lawsuit or prosecution.
When Are Autopsies Legally Required?
State statutes authorize autopsies in order to determine the cause of sudden, suspicious, or violent deaths. They’re performed by a coroner (a state official, not necessarily a medical doctor) or a medical examiner (who is a doctor). Statutes typically require that the deceased’s next of kin be notified that the procedure will take place. Objections by the next of kin won’t necessarily stop an official inquest or autopsy; the examiner has the discretion to proceed or not.
Official Autopsies Required by Law
A typical statute requires or authorizes an autopsy in the following situations:
- sudden deaths not caused by readily recognizable disease
- deaths occurring under suspicious or unusual circumstances, including those where alcohol, drugs, or other toxic substances may have been a factor
- deaths occurring as a result of violence, trauma, or gunshot, whether homicidal, suicidal, or accidental
- deaths that resulted from poisoning or overdose of drugs
- deaths associated with diagnostic or therapeutic procedures
- deaths where the body is unidentified or unclaimed
- deaths known or suspected as due to contagious disease and constituting a public hazard
- deaths occurring in prison or a penal institution or while in the custody of the police
- deaths resulting from disease, injury, toxic effects, or unusual exertion relating to a person’s employment
- deaths of persons whose bodies are to be cremated, buried at sea, or otherwise disposed of so as to be thereafter unavailable for examination, and
- sudden and unexplained infant deaths and stillbirths.
(16 Pa. Cons. Stat. § 1218-B; Utah Code § 24-4-7 (2022).)
Who Can Object to an Official Autopsy?
When an autopsy is planned pursuant to statute, the next of kin has a limited right to object and request an exception based on religious grounds. It’s up to the next of kin to convey this objection in a clear and timely manner. New York law allows the closest relative or friend of a decedent to object to an autopsy by attesting to the decedent’s religious beliefs.
The deceased person, themself, may object in advance through a health care directive or other writing. For instance, California law allows a person to sign a certificate of religious belief against postmortem autopsy. A certificate, however, won’t prevent an autopsy if the coroner suspects foul play or a disease constituting a public health hazard.
In these situations, the coroner weighs the need to conduct the procedure against the harm that will befall those who are left to live with it. When the question is before a court (discussed next), judges often will grant a family’s wishes unless a genuine necessity for the procedure exists.
(Cal. Gov’t Code § 27491.45; N.Y. Pub. Health Law § 4210-c (2022).)
When Can Autopsies Be Performed for Evidence?
Autopsies are sometimes performed in the context of a criminal or civil trial. For example, a defendant charged with a homicide crime may ask the court to order an autopsy of the victim, in order to prove or bolster a defense. Or, a defendant in a civil trial who has been accused of medical malpractice might want the deceased’s body examined in order to provide evidence in defense. In these situations, the court weighs the value of the probable evidence against any objections that the next of kin might raise.
The need for evidence that can be obtained by an autopsy arises in the following types of situations:
- Workers' compensation claims. Most states recognize the need in cases of work-related deaths when the autopsy will likely result in relevant evidence as to the cause of death. Typically, if survivors object, they risk having their benefit claims suspended or forfeited.
- Insurance payouts. Most states require insurers who offer health, accident, and similar policies to include a provision in the policy whereby the insured agrees to an autopsy when necessary, to determine the cause of death or other relevant information. Survivors may object, but at a price: California law, for example, lets decedents or their survivors block some autopsies but at the risk of forfeiting claims for benefits. (Cal. Ins. Code § 10111.5 (2022).)
- Probate cases. People involved in probate litigation have asked for autopsies to determine the order of death of persons killed in a multiple fatality accident, establish whether a woman ever had children, or establish identifying marks.
- Accident cases. Autopsies have been ordered in automobile accident cases (to determine, for example, the presence of drugs or alcohol), medical malpractice, and cases claiming death due to asbestos exposure.
- Criminal cases. Defendants in criminal cases have often demanded autopsies of their victims, in order to prove or bolster a defense. Most courts will order an autopsy in compelling cases, recognizing that the freedom of the defendant is at stake.
Can a Court Order a Body Exhumed for an Autopsy?
Many states prohibit the exhumation of a body without the consent of the next of kin or a court order. If the next of kin consents, the requesting party will likely need to get a permit from local authorities to conduct the exhumation. In certain cases, a person or the government may need to ask the court to order the exhumation of a body.
Court-Ordered Exhumation
State law often lays out what compelling reasons will justify the exhumation of a buried body. The requesting party usually must pay the costs of the exhumation if the order is granted.
Reasons for court-ordered exhumation might include:
- a government attorney or defendant who provides sufficient evidence that further investigation of a body is needed in the case of a suspicious death or criminal investigation
- a private person seeking to prove a biological relationship with the deceased for legal reasons (such as probate), or
- public officials believe the decedent died from a communicable disease that represents a public health issue.
The law may require that surviving next of kin be notified and given an opportunity to object.
Unlawfully Removing a Body From a Burial Place
A person who unlawfully removes a dead body from a burial place could face criminal charges. If removal or exhumation was done for purposes of concealing evidence or misleading authorities, a defendant could face even tougher penalties.
(Cal. Health & Safety Code §§ 7525 to 7528; Conn. Gen. Stat. § 7-67; Fla. Stat. § 872.02; Minn. Stat. § 609.502; Va. Stat. § 32.1-286; Wash. Rev. Stat. § 68.50.050 (2022).)
Can Coroners or Medical Examiners Face Liability for Actions Taken Relating to Autopsies?
When a coroner or medical examiner performs an autopsy pursuant to statute, that person is acting as a government official and enjoys the same limited immunity that other officials have when carrying out their duties. In other words, they won’t be civilly liable for negligent acts, but they may be liable for wanton or reckless mistakes.
For example, an examiner who fails to follow procedures for the disposal of a body that results in the loss of that body would probably be deemed negligent and not subject to liability. But an examiner allowing unnecessary persons to view, photograph, and comment on the procedure might constitute reckless or wanton behavior. Survivors typically sue for infliction of emotional distress.
Talk to an Attorney
If you have questions regarding an autopsy or exhumation of a loved one, you may want to talk to a lawyer that works in probate, family, or criminal law, depending on the situation involved.