Disinterment means to dig up a dead body for medical investigation or other purposes. A person seeking to disinter a body must usually petition to have the body exhumed. The disinterment of a body can be ordered by the courts for the purpose of an autopsy. Courts can permit a body to be exhumed and an autopsy to be performed under certain circumstances in order to discover truth and promote justice.
A valid reason is required before exhumation is allowed. However, the disinterment or disturbance of the body after burial is subject to the control of the courts. Courts are generally reluctant to order the removal of a body after interment because of the public health and welfare and respect for the dead and the feelings of the survivors
In order to obtain approval for disinterment, a person has to petition before a court for an order allowing disinterment. However, a court will order disinterment only for purposes of autopsy or reburial and only upon showing a substantial benefit to the public[i]. Therefore, courts will not order disinterment in the absence of necessity, or substantial, compelling, or valid reasons or reasonable cause for disinterment.
Each case is individually decided, based on its own particular facts and circumstances. However, disinterment cannot be considered as a matter of right, and a court will not order or permit a body to be disinterred against the will of an authorized person who has the right to object[ii]. It is to be noted that a cause of action exists for negligently or intentionally mishandling or losing a dead body even when its disinterment and reinterment are authorized[iii].
However, statutes in some jurisdictions allow disinterment without recourse to the courts if the requisite consents are obtained. Under such a statute, there is no need to prove a necessary or compelling reason for disinterment if the required consent has been obtained. Generally, the surviving spouse or next of kin of a deceased person has the right to let the body remain undisturbed. However, such a right is not an absolute one and can be violated if it conflicts with the public good. It is to be noted that there is no statutory or regulatory provision suggesting that the next of kin’s power to consent to disinterment is in any way compromised if the next of kin participated in the initial burial decision[iv].
Disinterment of a corpse can also be authorized during the pretrial investigation of a crime[v]. However, in civil cases, a court does not have the power to order disinterment and autopsy for evidentiary purposes in the absence of express statutory authorization [vi]. Although there is a lack of authority on the question of who must bear the costs of disinterment, it is generally held as the responsibility of the person who caused it to be done. In State v. Aitkens, 352 Mo. 746 (Mo. 1944), it was observed that the court is unable to find that the act of mutilating a corpse before interment is an offense under the statute though it apparently was at common law and there is civil liability.
[i] Stark v. Stark, 738 N.W.2d 625 (Iowa 2007)
[ii] Hough v. Weber, 202 Ill. App. 3d 674 (Ill. App. Ct. 2d Dist. 1990)
[iii] Whitehair v. Highland Memory Gardens, 174 W. Va. 458 (W. Va. 1985)
[iv] Alford v. Hale, 85 Ark. App. 23 (Ark. Ct. App. 2004)
[v] Donaldson v. Holcomb, 239 Ark. 958 (Ark. 1965)
[vi] Holm v. Superior Court, 187 Cal. App. 3d 1241 (Cal. App. 3d Dist. 1986)