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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6369 June 9, 1986 ANATOMICAL GIFTS: Right of next of kin to cancel or negate gift of body or physical part of the body Right of next of kin to challenge gift of body or physical part of the body Notice to next of kin of gift of body or physical part of the body AUTOPSY: Removal of pituitary gland Removal of cornea Objection of next of kin to removal of cornea or pituitary gland CORNEAS: Duty of medical examiner to locate and notify next of kin of intended autopsy and removal of cornea during autopsy Authorization of next of kin for removal of cornea during autopsy upon a body Objection of next of kin to removal of cornea during autopsy Delegation of authority to eye bank to notify next of kin of proposed cornea removal during autopsy Form of objection by next of kin to removal of cornea Recording of telephone statement of next of kin relating to removal of cornea Territorial application of cornea removal provisions of Public Health Code Removal of cornea in hospital COUNTY MEDICAL EXAMINERS: Removal of cornea and/or pituitary gland during autopsy HOSPITALS: Condition upon autopsy and removal of physical parts of body Notice to next of kin of gift of body or physical part of body WORDS AND PHRASES: 'Diligent effort' The next of kin of the donor of his or her body or of a physical part of the body has no right to cancel or negate the gift after the death of the donor. The next of kin of the donor of his or her body or of a physical part of the body may challenge the validity of the gift in a proceeding brought under the Revised Probate Code. A hospital or institution in which a donor of his or her body or of a physical part of the body has expired and which has knowledge of the gift may, but is not required to, inform the next of kin of the donor of the gift of the body or bodily organ by the donor. In the event the physical part of the body of the donor is to be removed by the donee in the hospital or institution in which the donor expired, the hospital or institution may inform the next of kin of the impending removal of such physical part of the body, but is not required to solicit permission for or objection to the removal of the physical part of the body. A medical examiner conducting an autopsy, authorized by law, after devoted and painstaking efforts to locate and inform the next of kin of intended autopsy and removal of the pituitary gland, may remove the pituitary gland during the autopsy, provided the medical examiner has no knowledge of any contrary direction made by the deceased individual or of any objection to the removal by the next of kin. A medical examiner conducting an autopsy with the permission of the next of kin may remove the pituitary gland from the body only with the consent of the next of kin. A medical examiner must make a devoted and painstaking effort to locate and notify the next of kin of his or her intent to perform an autopsy upon a body, authorized by law, and to remove the cornea from the body during the autopsy. A medical examiner may remove the cornea from a body during the performance of an autopsy upon the body authorized by law if the medical examiner is unable to locate the next of kin and the examiner has no knowledge of objection by the next of kin to removal of the cornea. A medical examiner is not required to solicit either the permission or objection of the next of kin to remove the cornea from a body during the performance of an autopsy, authorized by law. A medical examiner may not remove the cornea from a body during an autopsy, authorized by law, if the medical examiner learns of an objection by the next of kin to the removal of the cornea from the body. A medical examiner may not delegate to an eye bank his or her responsibility to notify the next of kin of the intent to conduct an autopsy, authorized by law, and to remove the cornea during the autopsy upon the body. A medical examiner may request that the objection by next of kin to removal of the cornea during an autopsy upon the body, authorized by law, be reduced to writing and duly witnessed. A medical examiner may record his or her telephonic conversation with the next of kin relating to the proposed removal of the cornea from the body during the autopsy, authorized by law. The cornea removal provisions of the Public Health Code apply throughout the state. A hospital may condition the use of its morgue for the performance of an autopsy, authorized by law, and the removal of the cornea from the body by the medical examiner during the autopsy upon the written consent of the next of kin to the removal of the cornea. Honorable Bob Emerson State Representative The Capitol Lansing, Michigan 48913 You have requested my opinion upon a number of questions relating to the anatomical gift, the cornea removal, and the pituitary removal provisions of the Public Health Code and the duties of the medical examiner concerning removal of portions of bodies of dead persons for education, transplantation, and therapy purposes. Your questions have been combined and restated to facilitate analysis and response to your inquiries. Uniform Anatomical Gift Provisions of the Public Health Code Your first question is: If a donor makes a gift of all or parts of his or her body by a statement provided for on donor's motor vehicle operator's license, does the next of kin have any right to cancel or negate this gift after the donor has died? In order for an individual to give all or any physical part of his or her body for medical education, research, therapy, or transplantation, the Public Health Code, MCL 333.10102(1); MSA 14.15(10102), requires that an individual must be 'of sound mind and 18 years of age or more . . ..' These requirements are identical to those prescribed by the Revised probate Code, MCL 700.121; MSA 27.5121, as necessary for testimentary capacity to execute a will. Another similarity with the Revised Probate Code is that the Public Health Code, MCL 333.10104(1); MSA 14.15(10104)(1), allows the gift to be made by will. (1) Significantly, however, that subsection further provides: 'The gift becomes effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.' If a donee intends to act upon the donation of a part of a body, the action must be taken, in most instances, within a matter of hours or days of the donor's death. If the donee does so, and acts in 'good faith,' the Legislature has permitted the donee to retain the anatomical gift, irrespective of the outcome of the probate proceedings. The general import of all of this is that the donee's rights to the gift validly made are paramount to those of the next of kin of the donor, and the Legislature has so stated in the Public Health Code, MCL 333.10102(5); MSA 14.15(10102)(5), which provides that '[t]he rights of the donee created by the gift are paramount to the rights of others except as provided by section 10108(4).' The latter subsection, MCL 333.10108(4); MSA 14.15(10108)(4), provides that '[t]he provisions of this part [Part 101--Secs. 10101-10109] are subject to the laws of this state prescribing powers and duties with respect to autopsies.' Thus, the Legislature has mandated that the donee's rights in the gift validly made by the donor are subject to the laws involving the performance of autopsies. This is further substantiated by the Public Health Code, MCL 333.10108(1); MSA 14.15(10108)(1), which, in pertinent part, provides: 'The donee may accept or reject the gift. If the donee accepts a gift of the entire body, the surviving spouse, next of kin, or other persons having authority to direct and arrange for the funeral and burial or other disposition of the body, subject to the terms of the gift, may authorize embalming and the use of the body in funeral services. If the gift is a physical part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the physical part to be removed without unnecessary mutilation. After removal of the physical part, custody of the remainder of the body vests in the surviving spouse, next of kin, or such other persons having authority to direct and arrange for the funeral and burial or other disposition of the remainder of the body. . . .' (Emphasis added.) It is significant that the Public Health Code contains no provision, upon the death of a donor, with respect to notification of the next of kin, either that there has been a gift of the body, or in the event that gift is a physical part of the body, that such part will be removed from the body. It is my opinion, in answer to your first question, that under the provisions of the Public Health Code, the next of kin of the donor has no right to cancel or negate the gift of the body or physical part of such body after the death of the donor. It is my further opinion that validity of the gift may be challenged in a timely judicial proceeding brought under the Rivised Probate Code. Your second question is: Is there a duty for the hospital or institution in which the donor has expired and having a knowledge of the gift to: (a) inform the next of kin that the decedent was an organ donor; (b) inform the next of kin of an intent to remove the intended gift; or (c) solicit an objection or permission for removal from the next of kin? The Public Health Code makes no provision mandating the hospital or the institution in which the donor has expired and which has knowledge of the gift of the body or a physical part of the body to inform the next of kin of the gift of the body, or to inform the next of kin that, where applicable, removal of the physical part of the body will be made at the hospital or institution in accordance with the terms of the gift. Such a hospital or institution, however, is not precluded by the Public Health Code from informing the next of kin of the gift of the body or the physical part of the body. Further, the Public Health Code makes no provision for such a hospital or institution to solicit from the next of kin of the donor permission for or objection to the removal of the part of the body before such part may be removed by the donee. The hospital or institution may inform the next of kin of the proposed removal of the physical part of the body in the hospital or institution. It is my opinion, in answer to your second question, that the Public Health Code imposes no legal duty upon a hospital or institution in which the donor has expired and which has knowledge of the gift by the donor of his or her body or physical part of the body: (a) to inform the next of kin of such gift, (b) to inform the next of kin that, where applicable, removal of the physical part of the body in accordance with the gift will be made in the hospital, or (c) to solicit from the next of kin either an objection to or permission for removal of the bodily organ. It is my further opinion that such hospital or institution may inform the next of kin of the gift of the physical part of the body and, in the event such part is to be removed in the hospital or institution, of the impending removal of the physical part of the body. Cornea Removal Provisions of the Public Health Code You have also asked several questions relating to the duty of the medical examiner in relation to the cornea removal provisions of the Public Health Code. Each question will be separately stated and addressed. 3. Is the medical examiner required to contact the deceased's next of kin to advise that the medical examiner intends to remove the cornea? If so, how extensive must the medical examiner's efforts to contact the next of kin be? County medical examiners (2) are required to make investigations as to the cause and manner of death in 'all cases of persons who have come to their deaths by violence; or whose death was unexpected; or without medical attendance during the 48 hours prior to the hour of death unless the attending physician, if any, is able to determine accurately the cause of death; or as the result of an abortion, whether self-induced or otherwise.' MCL 52.202; MSA 5.953(2). Any physician or other person who has first-hand knowledge of the death of any person who died under the circumstances described in MCL 52.202; MSA 5.953(2), shall immediately notify the medical examiner of the death of such person. MCL 52.203; MSA 5.953(3). The medical examiner shall take charge of the body of such a person and, if on view of the body and personal inquiry into the cause and manner of death, the medical examiner considers further examination necessary, he or she may cause the body to be transported to the morgue. MCL 52.205(1)-(2); MSA 5.953(5)(1)-(2). MCL 52.205(4)-(5); MSA 5.953(5)(4)-(5), in pertinent part, set out the duties of the medical examiner in notifying the next of kin of the death of such person: '(4) The medical examiner shall ascertain the identity of the deceased and notify immediately as compassionately as possible the next of kin of the death and the location of the body except that such notification is not required if a person from the state police or a county sheriff department or a township police department or a municipal police department states to the medical examiner that the notification has already occurred. The county medical examiner may conduct an autopsy if he or she determines that an autopsy reasonably appears to be required pursuant to law. After the county medical examiner or a deputy or a person from the state police or a county sheriff department or a township police department or a municipal police department has made diligent effort to locate and notify the next of kin, he or she may order and conduct the autopsy with or without the consent of the next of kin of the deceased. '(5) The county medical examiner or a deputy shall keep a written record of the efforts to locate and notify the next of kin for a period of 1 year from the date of the autopsy. The county medical examiner shall, after any required examination or autopsy, promptly deliver or return the body to relatives or representatives of the deceased or, if there are no relatives or representatives known to the examiner, he or she may cause the body to be decently buried, except that the medical examiner may retain, as long as may be necessary, any portion of the body believed by the medical examiner to be necessary for the detection of any crime.' (Emphasis added.) Thus, a diligent effort to locate and notify the next of kin of the death and location of the body must be made before an autopsy may be ordered and conducted by the medical examiner. Additionally, if located, the next of kin must be informed of the intended autopsy. After a diligent effort to notify the next of kin of the death and intended autopsy, an autopsy may be ordered by the county medical examiner if the medical examiner determines that an autopsy reasonably appears to be required pursuant to his or her duty to make investigation as to the cause and manner of death in all cases of persons who have died under circumstances described in MCL 52.202, 52.205; MSA 5.953(2), 5.953(5). Such autopsy may be conducted with or without the consent of the deceased's next of kin. MCL 52.205(4); MSA 5.953(5)(4); Allinger v Kell, 102 Mich App 798; 302 NW2d 576 (1981), rv'd on other grounds, 411 Mich 1053; 309 NW2d 547 (1981). The Public Health Code, MCL 333.10202; MSA 14.15(10202), empowers the medical examiner to authorize removal of the cornea of the deceased in any case where an autopsy is to be conducted by the medical examiner or his or her duly authorized representative. The cornea may be removed, however, 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 postmortem facial appearance.' MCL 333.10202(2)(a)-(c); MSA 14.15(10202)(2)(a)-(c). As to the first requirement, as discussed above, an autopsy may be performed without authorization of the next of kin only after a diligent and unsuccessful effort to locate the next of kin by the medical examiner or police. The term 'diligent effort' is not defined by the statute governing the county medical examiner. The term, however, has been defined in case law as "devoted and painstaking application to accomplish an undertaking" which must be 'determined on a case-by-case basis.' Woodbeck v Curley (After Remand), 107 Mich App 784, 788; 310 NW2d 242 (1981). Thus, superficial or perfunctory efforts would not constitute a diligent effort. If the next of kin are located, the notification provisions, described above, would require that the medical examiner advise the next of kin that the medical examiner intends to remove the cornea as part of the autopsy. With regard to the second requirement for cornea removal, while the medical examiner must honor known objections to cornea removal by the next of kin, the Legislature has imposed no duty on the medical examiner to obtain authorization for removal during performance of the autopsy of the corneas from the next of kin, provided the medical examiner has no knowledge of any objection of the next of kin to removal of the cornea. Thus, when the next of kin cannot be located, the medical examiner may authorize removal of cornea during an autopsy authorized by MCL 52.202; MSA 5.953(2), conducted by the medical examiner or a duly designated representative. Further, where the next of kin is located and informed of the intent to perform an autopsy and to remove the cornea, the medical examiner is not required to actively solicit either permission or objection to the removal of the cornea. If the next of kin, however, objects to removal of the cornea, the cornea may not be removed. It is noted that MCL 333.10203; MSA 14.15(10203), grants immunity from civil liability to the medical examiner if, in the case of nonobjection by next of kin to removal of the cornea, it is subsequently alleged authorization was required: 'The county medical examiner, the assistant county medical examiner, a bank or storage facility, or any person authorized by the county medical examiner to remove the cornea of a deceased person, shall not be liable in a civil action if it is subsequently alleged that authorization for the removal was required of the next of kin.' See also, Tillman v Detroit Receiving Hospital, 138 Mich App 683; 360 NW2d 275 (1984), lv den, 422 Mich 909 (1985), where the court held that the plaintiff had failed to state a claim against the defendant medical examiner who had not obtained the next of kin's consent to remove the deceased's corneas and was entitled to judgment as a matter of law pursuant to MCL 333.10203; MSA 14.15(10203), since, inter alia, there was no factual issue that the medical examiner knew of any objection of the next of kin to the removal of the corneas. The court in Tillman also rejected the plaintiff's challenge to the constitutionality of MCL 333.10203; MSA 14.15(10203), based upon the right of privacy, holding: 'Plaintiff claims that as next of kin she has an inherent, fundamental right to bury her decedent's body without mutilation. While there is no property right in the next of kin to a dead body, Deeg v Detroit, 345 Mich 371, 375; 76 NW2d 16 (1956), Michigan jurisprudence recognizes a common law cause of action on behalf of the person or persons entitled to the possession, control, or burial of a dead body for the tort of interference with the right of burial of a deceased person without mutilation. Id. 'We do not find this common law right to be of constitutional dimension. The privacy right encompasses the right to make decisions concerning the integrity of one's body. . . . This right is, however, a personal one. It ends with the death of the person to whom it is of value. It may not be claimed by his estate or his next of kin. Accordingly, we reject plaintiff's constitutional challenge predicated on the right to privacy.' Tillman, 138 Mich App 686-687. The Legislature's intent that the medical examiner need not solicit permission to remove of the cornea is especially clear upon examining the legislative history of MCL 333.10202; MSA 14.15(10202). The legislative history of a statute may be examined as an aid in determining legislative intent. Bowie v Coloma School Board, 58 Mich App 233; 227 NW2d 298 (1975). The language of the pertinent cornea removal provision, 1979 HB 4002, would have expressly required the medical examiner to seek permission for removal, providing: 'Sec. 10110. Within 2 hours after the receipt of a corpse, the county medical examiner shall seek to obtain from the surviving spouse or the nearest blood relative of the decedent, in the order provided in Section 10102, approval to permit an eye bank to remove the eye or that part of the eye that is usable for the purpose of storage for subsequent use as part of a corneal tissue transplant. 'Sec. 10111. If the county medical examiner is unable to contact the surviving spouse or the nearest blood relative after due diligence the county medical examiner within 4 hours after the death of the decedent and pursuant to Section 10105 shall contact an eye bank and permit the removal of the eyes of the decedent or those parts of the eyes that are useful for subsequent corneal transplant. 'Sec. 10112. Removal pursuant to section 10111 shall be permitted only under the following conditions: '(a) The county medical examiner has made diligent effort to contact the surviving spouse or the nearest blood relative of the decedent and has been unable to contact either person. '(b) The surviving spouse or the nearest blood relative has not communicated an objection to the removal of the eyes or part of the eyes to the county medical examiner and the medical examiner knows of no objection to the removal of the eyes or parts of the eyes. '(c) The removal of the eye or part of the eye will not interfere with the cause of any subsequent investigation or autopsy or alter post mortem facial appearance.' All references to the medical examiner's duty to obtain consent from the next of kin were deleted from the bill as enrolled. House Substitute (H2) to HB 4002, 3 HJ 3121-3122 (1979). House Substitute (H2) to HB 4002 was approved by the House on second reading. 1 HJ 305 (1979). HB 4002 was thereafter enacted without further change. As the House Bill Analysis indicated, one of the arguments against the language of the cornea removal provision as enacted was: 'Against: 'Some people might find objectionable the removal of tissue from dead persons without the authorization of the next-of-kin, particularly since the removal would not be for evidentiary purposes. 'Response: 'According to an eye bank official from Maryland where a similar law was passed in 1975, there have been no complaints about the procedure there despite an average of 1,000 cornea removals per year. Medical examiners have wide-ranging authority now to conduct autopsies regardless of the objections of relatives and it is considered impractical with the time-frame involved in cornea removals to require medical examiners to seek out persons to provide authorization. The procedure is not mutilating and the bill would prohibit the cornea removal where the post-mortem facial appearance of the deceased would be altered.' Analysis of HB 4002, Committee Substitute H-2, by the House Legislative Analysis Section, dated February 22, 1979. It is my opinion, in answer to your third question, that where the medical examiner investigates the death of a person, the medical examiner must make a devoted and painstaking effort to locate and notify the next of kin of his or her intent to perform an autopsy upon the body, authorized by MCL 52.205; MSA 5.953(5), and of his or her intent to remove the cornea from the body during the autopsy. Your fourth question is: If the medical examiner locates the next of kin, must the medical examiner solicit permission or objection from the next of kin to cornea removal? If so, must permission be sought at any particular time, for example, when the next of kin are first notified of the death and/or when the decision is made to perform the autopsy? May the medical examiner authorize removal when the next of kin cannot be located? The Public Health Code imposes no duty upon the medical examiner to obtain the next of kin's authorization for the removal of the cornea. The medical examiner may authorize removal of the cornea during the autopsy if, after a diligent effort, the next of kin cannot be reached, a long as he or she knows of no objection to removal of the cornea by the next of kin. In the event that the next of kin is located, no affirmative duty is imposed on the medical examiner to solicit either permission or objection. If the next of kin, upon being informed by the medical examiner of the proposed autopsy and intent to remove the cornea, states an objection or the medical examiner otherwise knows of an objection by the next of kin, the cornea may not be removed. It is my opinion, in answer to your fourth question, that the medical examiner is not required to solicit either the authorization of or the objection of the next of kin prior to the removal of the cornea during the autopsy upon the body as authorized by law. It is my further opinion that if the medical examiner learns of an objection of the next of kin, the cornea may not be removed from the body. Your fifth question is: May the medical examiner legally delegate his or her responsibility to notify the next of kin of the intended cornea removal to others, such as a representative of an eye bank? MCL 52.205; MSA 5.953(5), requires that the notification of next of kin concerning the location of the body be made by the medical examiner when the police authorities described therein have not already notified the next of kin. While these provisions contemplate delegation by the medical examiner of the responsibility to notify the next of kin of the intended autopsy authorized by law and the removal of the cornea from the body to his or her deputy appointed pursuant to MCL 52.201c; MSA 5.953(1c), or a medical examiner investigator appointed pursuant to MCL 52.201a(2); MSA 5.953(1a)(2), the notification provisions do not authorize delegation of the responsibility to other persons. It is my opinion, in answer to your fifth question, that the medical examiner may not legally delegate to the representative of an eye bank his or her responsibility to notify the next of kin of the intended autopsy, authorized by MCL 52.205; MSA 5.953(5), and the removal of the cornea. Your sixth question is: Must either the permission or objection of the next of kin to the removal of the cornea be verbal-witnessed or written-witnessed? The Public Health Code does not require consent of the next of kin for the removal by the medical examiner of the cornea from the body upon which the autopsy is performed pursuant to MCL 52.205; MSA 5.953(5). As to statements of the next of kin indicating objection to removal of the cornea, the law does not require that statements made by the next of kin be obtained or recorded in any particular manner. In certain circumstances, however, the medical examiner or his or her duly authorized representative, may wish to obtain written or witnessed statements of the next of kin where time permits to mitigate the possibility of subsequent disagreement over whether an objection to removal had been made by the next of kin. It is my opinion, in answer to your sixth question, that while it is within the discretion of the medical examiner to request written or witnessed statements from the next of kin concerning objection to cornea removal from the body during an autopsy, authorized by MCL 52.205; MSA 5.953(5), the Public Health Code does not require next of kin objecting to removal of the cornea to do so in a verbal-witnessed or written-witnessed statement. Your seventh question is: May the medical examiner record the next of kin's statements concerning cornea removal over the telephone without the express permission or knowledge of the next of kin? MCL 750.539a(2); MSA 28.807(1)(2), prohibits a person from recording 'the private discourse of others without permission of all persons in the discourse.' (Emphasis added.) The Michigan Court of Appeals, in Sullivan v Gray, 117 Mich App 476; 324 NW2d 57 (1982), lv den, 417 Mich 1051 (1983), held that this prohibition did not apply to recording of a conversation by one of the participants in the conversation. It is my opinion, in answer to your seventh question, that the medical examiner may record his or her telephonic conversation with the next of kin relating to the proposed removal of the cornea from the body during the autopsy, authorized by MCL 52.205; MSA 5.953(5). Your eighth question is: Do the cornea removal provisions apply only in Wayne and Oakland Counties which have medical examiner systems that are autonomous of hospitals? Nothing in the cornea removal provisions of the Public Health Code indicate an intent by the Legislature that the provisions operate only in Wayne and Oakland Counties. It is noted that one argument against MCL 333.10202; MSA 14.15(10202), as set forth in the Bill Analysis by the House Legislative Analysis Section, was: 'Against: 'It has been suggested that the bill be made to apply only to 'full-time' medical examiners (namely, those in Wayne and Oakland counties) as many of the state's part-time medical examiners serve with reluctance and this could increase their responsibilities. 'Response: 'The bill does not require a medical examiner to do anything; it permits a medical examiner to remove or to authorize the removal of corneal tissue during a routine autopsy. This would allow a part-time medical examiner to remove corneal tissue if he or she desired but would impose no new requirement.' (Emphasis in original.) Analysis of HB 4002, Committee Substitute H-2, by the House Legislative Analysis Section, dated February 22, 1979. It is my opinion, in answer to your eighth question, that the cornea removal provisions of the Public Health Code, MCL 333.10201 et seq; MSA 14.15(10201) et seq, are not restricted to Oakland and Wayne Counties, but apply throughout the state. Your ninth question is: If the cornea removal provisions are applicable to counties other than Wayne and Oakland, may a hospital impose upon the medical examiner conditions for removal of the cornea during the autopsy beyond the minimum required by law? You indicate in your letter that despite the fact that the law does not require that the medical examiner to obtain permission from the next of kin for cornea removal, some hospitals insist that such be done when the medical examiner is using the hospital's morgue for the performance of the autopsy, authorized by MCL 52.205; MSA 5.953(5). MCL 52.205(1); MSA 5.953(5)(1), states that the medical examiner may cause the dead body to be removed to the public morgue if the medical examiner considers a further examination necessary. The provision further provides that if there is no public morgue, then the body may be removed to a private morgue as the county medical examiner has designated. It is noted that if the body of a deceased person has been removed to a private morgue for examination upon the order of the medical examiner, the keeper of the morgue shall be allowed compensation from the county treasury for his or her services as the medical examiner deems reasonable. MCL 52.206; MSA 5.953(6). A hospital is not required to permit a medical examiner to use its morgue for purposes of performing an autopsy. Thus, the conditions for use of the hospital morgue must be agreed to by the hospital and the medical examiner. In the absence of any statutory proscription, a hospital may require as part of the agreement that the medical examiner obtain written permission of the next of kin to remove the cornea, even though this is not required by law. The medical examiner would be able to enter into such an agreement since removal of the cornea without express permission of the next of kin is permitted, but not required by MCL 333.10202; MSA 14.15(10202). It is my opinion, in answer to your ninth question, that if a medical examiner seeks the removal of the cornea in a hospital where the autopsy, authorized by MCL 52.205; MSA 5.953(5), is to be performed, the hospital may impose conditions for such autopsy and the removal of the cornea in the hospital, including consent of the next of kin. Pituitary Gland Removal Provisions of the Public Health Code Your tenth question is: Must the medical examiner notify the next of kin of his or her intent to remove a pituitary gland from the body of a deceased person and must the medical examiner solicit an objection or permission for such removal? The Public Health Code, MCL 333.2855; MSA 14.15(2855), provides, in pertinent part: '(1) An autopsy shall not be performed upon the body of a deceased individual except by a physician who has been granted written consent to perform the autopsy by whichever 1 of the following individuals assumes custody of the body for purposes of burial: parent, surviving spouse, guardian, or next of kin of the deceased individual or by an individual charged by law with the responsibility for burial of the body. If 2 or more of those individuals assume custody of the body, the consent of 1 is sufficient. This section shall not prevent the ordering of an autopsy by a medical examiner . . .. '(4) A physician, including a medical examiner, performing an autopsy pursuant to subsection (1), . . . may remove, retain, or use the pituitary gland of the deceased individual if the removal, retention, or use of the pituitary gland is for purposes of medical research, education, or therapy, and the physician is unaware of any direction made by the deceased individual before death or of an objection made by the next of kin of the deceased individual that a part of the deceased individual's body not be removed. '(5) If consent for the performance of the autopsy is required pursuant to subsection (1), the physician shall obtain consent from the same individual for the removal, retention, or use of the pituitary gland of the deceased individual pursuant to subsection (4).' Under the language of subsections (1), (4), and (5), a medical examiner performing an autopsy, authorized by MCL 52.205; MSA 5.953(5), may remove, without seeking the consent of the next of kin, the pituitary gland of the deceased individual for purposes of medical research, education, or therapy, as long as (1) the medical examiner is unaware of any direction made by the deceased individual before death that a part of his body not be removed after his or her death; and (2) the medical examiner is unaware of an objection of the next of kin to the removal of a part of the deceased individual's body. Thus, like the cornea removal requirements, this provision imposes no duty upon the medical examiner to obtain permission from the next of kin for removal of the pituitary gland, as long as the autopsy is authorized by MCL 52.205; MSA 5.953(5). As discussed above concerning notification of the next of kin of the proposed cornea removal, the medical examiner must make a devoted and painstaking effort to contact the next of kin prior to conducting an autopsy and, if the next of kin is located, must advise the next of kin of the intent to perform an autopsy, authorized by MCL 52.205; MSA 5.953(5), and to remove the pituitary gland during the autopsy. Pursuant to subsection (5), if consent of the next of kin for the performance of the autopsy is required, the medical examiner must likewise obtain consent from the next of kin for removal of the pituitary gland. It is my opinion, in answer to your tenth question, that permission or objection by the next of kin to the removal of the pituitary gland by the medical examiner is not required, provided such removal takes place during an autopsy, authorized by MCL 52.205; MSA 5.953(5), and provided that devoted and painstaking efforts by the medical examiner to locate the next of kin were unsuccessful and the medical examiner has no knowledge of any contrary direction of the deceased individual or objection by the next of kin to the removal of the pituitary gland. It is my further opinion that if the medical examiner locates the next of kin, informs the next of kin of his or her intent to perform an autopsy, authorized by MCL 52.205; MSA 5.953(5), and to remove the pituitary gland during the autopsy and learns of an objection from the next of kin to the removal of the pituitary gland, the pituitary gland may not be removed. It is my further opinion that in the event an autopsy is performed subject to consent of the next of kin, the pituitary gland may not be removed without consent of the next of kin. Frank J. Kelley Attorney General (1)
(2)
The duties of the medical examiner, as described herein, may also be performed by a deputy medical examiner, appointed pursuant to MCL 52.201c; MSA 5.953(1c).
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