Complete Story
03/13/2009
Body Donations by Government Officials
By T. Scott Gilligan, OFDA General Counsel
As local governments face decreasing tax revenues and ever-tightening budgets, funeral homes report more and more problems in prying fees out of townships and municipalities when indigents are buried or cremated. It is not atypical for a township or municipality to simply refuse to pay for the disposition of an indigent by claiming that there is no money in the budget.
This is not a valid excuse. The obligation for townships and municipalities to pay disposition costs for deceased indigent residents is statutory; it is not discretionary. Just as the funeral home cannot avoid paying taxes by claiming that the funeral director failed to budget for taxes, a municipality or township cannot duck its statutory obligation to pay funeral homes because indigent funerals are not in the budget. The failure of local governmental officials to properly budget is not an excuse for failing to pay the funeral home.
With Senate Bill 196 taking effect on April 6, 2009, government officials are now added to the list of individuals authorized to arrange burials, cremations and other dispositions. Although public officials fall into the last category of individuals on the statutory priority list, in the case of an indigent whose relatives are unwilling to pay for the disposition, the public official will hold the power (and obligation) to carry out the disposition.
One financially-strapped township recently raised the possibility of using body donation as a means of inexpensively dealing with its obligation to pay the cost of disposition. Reasoning that it has the power under the statute to arrange the disposition of the indigent's remains, it decided to donate the body and avoid the expense of burial or cremation. Since body donation is an acceptable form of disposition, the issue arises as to whether a township or municipal official, holding the right of disposition, could simply donate a body to a medical school or other procurement organization.
The answer to the issue is a conditional yes. As the holder of the right of disposition, the township or municipality does have the right to authorize the whole body donation. However, under the statutory sections controlling anatomical donation, most family members could object and stop the township or municipality from carrying out the donation.
In this regard, Section 2108.02(B) of the Ohio Revised Code, which controls the right to make body donations, provides as follows:
"(B) Any of the following persons, in the order of priority stated, when persons and in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may make an anatomical gift of all or any part of the body of a decedent for any purpose specified in section 2108.03 of the Revised Code:
(1) The spouse;
(2) An adult son or daughter;
(3) Either parent;
(4) An adult brother or sister:
(5) A grandparent;
(6) A guardian of the person of the decedent at the time of the decedent's death;
(7) Any other person authorized or under obligation to dispose of the body."
Since a municipal or township official would fall under the seventh classification, he or she would be authorized to dispose of a body by anatomical gift. However, as the highlighted language in the first part of Section 2108.02(B) indicates, any member of a higher class may object to and put a halt to the donation. In other words, the township or municipality would only be able to make the donation in the absence of "actual notice of opposition by a member of the same or a prior class." Therefore, if the indigent opposed anatomical donation or if the indigent's spouse, adult child, parent, adult sibling, grandparent or guardian opposes the donation, the township or municipality would be unable to carry it out and would have to pay for a disposition by cremation or burial.
If a funeral home is confronted with a municipality or township that is seeking to donate the body of an indigent, the funeral home should advise family members that they have a right to object and halt the donation. It is important to note that if the relative is opposed to donation, they must serve actual notice on the government official of the opposition. Therefore, the family member opposing the donation should immediately contact the township or municipality and inform them orally that they oppose donation. That phone call should be followed up by a letter.
OFDA members with questions regarding this article should contact Scott Gilligan at 513-871-6332 with any questions.
