This appeal is from an order of the State Court of Chatham County holding unconstitutional OCGA
31-23-6 (b) (1), which authorizes, under specified circumstance, [1] removal for transplant of the corneal tissue of decedents if no objection is made by the decedent in his life or by his next-of-kin after death.
This law was enacted by a virtually unanimous General Assembly in 1978. The record indicates that before its passage, approximately 25 corneal transplants were performed each year. In 1984, however, more than 1000 persons regained their sight through transplants.
Pursuant to this Code section, officials of the Georgia Lions Eye Bank removed during autopsy the corneal tissue of an infant, who had died of sudden infant death syndrome. While the parents of the infant did not object, there was no notice of the intended removal, nor any realistic opportunity to object. Sometime later, the mother discovered for the first time that the corneal tissue had been removed. She brought suit against St. Joseph's Hospital and the Georgia Lions Eye Bank for the wrongful removal of the tissue.
The trial court held the statute 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.
1. In the earlier days of the common law, so Blackstone avers, no property right existed relative to a dead body, and matters concerning corpses were left to the ecclesiastical courts. "But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently, at least if not impiously, violate and disturb their remains, when dead and buried." 2 W. Blackstone, Commentaries *429 (T. Cooley, ed. 1899).
Because there were no ecclesiastical courts in this country to resolve matters relating to corpses, the courts conceived the notion of quasi-property right," when referring to the interest of relatives in the bodies of their next-of-kin. Dean Prosser noted: "It seems reasonably obvious that such 'property' is something evolved out of thin air to meet the occasion, and that in reality the personal feelings of the survivors are being protected, under a fiction likely to deceive no one but a lawyer." W. L. Prosser and W. P. Keeton, Prosser and Keeton on Torts, p. 63 (5th ed. 1984).
In Georgia, an early case considering this interest of next-of-kin is Louisville &c. R. Co. v. Wilson,
243 Ga. 561 (255 SE2d 57) (1979).
"A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." Munn v. Illinois,
94 U. S. 113 , 134 (24 LE 77) (1876).
3. " 'The preservation of the public health is one of the duties devolving upon the State as a sovereign power. In fact, among all of the objects sought to be secured by governmental laws, none is more important than the preservation of the public health'; . . . 'Health regulations are of the utmost consequence to the general welfare; and if they are reasonable, impartial, and not against the general policy of the State, they must be submitted to by individuals for the good of the public, irrespective of pecuniary loss.' " Abel v. State,
45-16-27 (a) (1) provides, in part, that coroners shall require a post-mortem examination or autopsy when any person dies "suddenly when in apparent good health."
1985
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