ALBANY, N.Y. (Jun. 27)
The New York Legislature has passed an unprecedented measure which will substantially limit the power of medical examiners throughout the state to perform an autopsy over religious objections, an issue of vital concern to observant Jews. The bill’s principal sponsor. Assemblyman Sheldon Silver (D. Manhattan) said it is the first and only law of its kind in any of the 50 states.
Silver said the measure, unanimously approved by both the Assembly and the State Senate in the closing hours of the current legislative session, is expected to be signed by Gov. Mario Cuomo. Silver said the measure was sponsored in the Senate by Sen. Jim Lack (R. Suffolk) and was drafted with the help of Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA), and COLPA attorneys Judah Dick and A. David Stem.
Silver said that, under existing law, autopsies must be performed in all cases when death occurs in the absence of medical supervision, such as in traffic accidents and other occasions when a doctor is unable to certify the exact cause of death.
Silver said that some courts have, on occasion, banned autopsies when objections were raised on religious grounds. But, he added, those opposing the autopsy had to promptly start a court action to prevent the exercise by the medical examiner of his discretion ostensibly approved by existing law.
The bill provides that an autopsy may not be performed over religious objections unless there is a “compelling public necessity,” defined as a situation in which the autopsy “is essential to the conduct of a criminal investigation of a homicide of which the decedent is the victim,” or one in which “discovery of the cause of death is necessary to meet an immediate and substantial threat to the public health” and “a dissection or autopsy is essential to ascertain the cause of death.”
Silver said the measure also provides that a next of kin or “friend” of the dead person, defined as someone “who maintained such regular contact with the decedent as to be familiar with his religious beliefs” can oppose an autopsy. The bill also requires that all permitted autopsies must be the “least intrusive procedure consistent with the compelling state interest and cannot be performed until there has been 48 hours notice to permit an objecting party to challenge the propriety of the particular dissection.”
If a medical examiner maintains that an autopsy is warranted by a compelling public necessity other than investigation of a homicide, or prevention of disease, the bill requires the obtaining of a court order “on notice to next of kin or friend, or if none is known to them, to such party as the court may direct.”
REVERSES CURRENT PROCEDURE
Silver said this approach reverses the current procedure under which opponents of an autopsy must go to court “to halt clearly objectionable autopsies” and provides a mechanism for a court to rule in extraordinary circumstances.
Jewish religious law imposes severe limits under which dissection of a cadaver is permitted and improper dissection is considered a defilement of the body and a desecration of the good name of the dead person.
Silver said he was satisfied that the approved measure strikes an appropriate balance between the legitimate needs of members of minority faiths and the law enforcement and public health interests of all citizens of New York state. He introduced a similar bill in the 1981 session but it failed in the Senate after being approved by the Assembly.
Rapps said that, based on the experience gained in helping getting the New York law enacted, COLPA will now start an effort to get similar legislation adopted in the 14 other states in which there are COLPA chapters.