Every body of a deceased person must be decently buried or incinerated within a reasonable time after death[i]. There is a right to a decent burial which is guarded by the law, corresponding to the common law duty to bury the dead body of a person in order to maintain public health and decency[ii].
The quasi-property rights of the survivors include the right to custody of the body; to receive it in the condition in which it was left, without mutilation; to have the body treated with decent respect, without outrage or indignity; and to bury or dispose the body without interference[iii]. In a civil action, a person who wrongfully mutilates a dead body can be held liable for damages. The survivor has the legal right to bury the body.
For any mutilation of a dead body, the one entitled to its custody has the right to recover compensatory damages for his/her mental suffering caused if the mutilation committed was either intentional or negligent or done by an unlawful autopsy. Punitive damages can also be recovered if the conduct of the defendant was willful, malicious, or grossly negligent[iv]. The custodian of a corpse has a legal right to its possession for the purposes of preservation and burial, and any interference with that right by mutilation or any other disturbance to the body is an actionable wrong[v].
The unlawful and intentional mutilation of a dead body gives rise to a cause of action on behalf of the person or persons entitled to the possession, control, and burial of such body[vi]. However, bare fact of an unauthorized embalming will not constitute such a mishandling or mutilation of a body to support a cause of action for mental anguish by the next kin[vii].
If a statute criminalizes an unauthorized removal of body parts from a dead body, then there is no need of any contract or special relationship to create a duty to prevent this harm. When damages are sought for negligently inflicted emotional distress, the tort is negligence regardless of the specific name that is be used to describe the tort. The elements of the tort of intentional infliction of emotional distress are: (i) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (ii) suffering of plaintiff of severe or extreme emotional distress; and (iii) actual and proximate causation of the emotional distress by the outrageous conduct of the defendant[viii]. A claim of emotional distress requires objective evidence of emotional distress caused by the defendant’s negligence. A plaintiff need not allege elements of damage in addition to emotional distress in order to recover for a negligent autopsy[ix].
In addition to this, some statutes provides criminal liability for unauthorized mutilation or dissection of a dead body. Some statutes prohibit the removal, concealment, failure to report the finding of, or the destruction of a dead body or any part of it[x].
[i] Correa v. Maimonides Medical Ctr., 165 Misc. 2d 614 (N.Y. Sup. Ct. 1995)
[ii] Travelers Ins. Co. v. Smith, 338 Ark. 81 (Ark. 1999)
[iii] Whitehair v. Highland Memory Gardens, 174 W. Va. 458 (W. Va. 1985)
[iv] Massey v. Duke Univ., 129 N.C. App. 807 (N.C. Ct. App. 1998)
[v] Mensinger v. O’Hara, 189 Ill. App. 48 (Ill. App. Ct. 1914)
[vi] Deeg v. Detroit, 345 Mich. 371 (Mich. 1956)
[vii] Parker v. Quinn-McGowen Co., 262 N.C. 560 (N.C. 1964)
[viii] Christensen v. Superior Court, 54 Cal. 3d 868 (Cal. 1991)
[ix] Kelly v. Brigham & Women’s Hosp., 51 Mass. App. Ct. 297 (Mass. App. Ct. 2001)
[x] State v. Redd, 1999 UT 108 (Utah 1999)