Request By:
Mr. Tim Futrell
Attorney at Law
44 Main Street
P.O. Box 919
Cadiz, Kentucky 42211
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion concerning an interpretation of KRS 72.425, which reads:
"In the event the death of a person is not a coroner's case, consent to an autopsy shall be obtained from the decedent, by written consent, signed and acknowledged prior to his death; or his or her spouse; or in the absence of a spouse, the next of kin of the decedent; or in the absence of any of the above, the person who assumes the responsibility to dispose of the body."
"The rule is that where a nonofficial autopsy is performed without the consent of those who have the quasi right of property in the corpse, the person performing the autopsy or the one responsible therefor is liable in damages. On the other hand, where consent to an autopsy is given generally by the parties who are entitled to the body, there is no liability for performing it in the approved and usual manner." 22 Am.Jur.2d, Dead Bodies, § 32, p. 580. See also
Lashbrook v. Barnes, Ky., 437 S.W.2d 502 (1969) 503, on the latter point. See 83 A.L.R.2d 955 for annotation on "Liability for Performing an Autopsy. "
The basic rule in Kentucky concerning rights relating to dead bodies was stated in
Streipe v. Liberty Mut. Ins. Co., 243 Ky. 15, 47 S.W.2d 1004 (1932) 1005:
". . . . it has been regarded as the settled law of this country that, for the purpose of preservation and sepulture, a surviving spouse, or next of kin, in the absence of a different disposition by will, has the right to possession of the dead body, which the law will recognize and protect from unlawful invasion by awarding damages for injury to the feelings resulting from any wrongful mutilation or mishandling of the corpse. "
Let us assume that a coroner's case is not involved; that the deceased did not leave any written consent to an autopsy, and that the deceased left no spouse. Thus, under KRS 72.425, the physician or surgeon who desires to do an autopsy on the body must procure the written consent of the "next of kin" of the decedent. The question then arises: Who is included in the term "next of kin" ?
The case of
Boyd v. Perkins, 130 Ky. 77, 113 S.W. 95 (1908) 96, in interpreting a will using the term my "kin" , cited favorably the rule that the phrase "next of kin" , whether used in a statute, will, or contract, includes only relations by blood, and not by marriage, not even a husband and wife.
The right of burial, if decedent leaves no spouse, is in the next of kin in the order of their relation to the decedent, such as children, parents, brothers and sisters, etc. 22 Am.Jur.2d, Dead Bodies, § 10, p.p. 561-562. In practical terms, the "next of kin" is one or more persons in the nearest degree of blood relationship to another person. Webster's Seventh New Collegiate Dictionary, p. 569. See also
North East Coal Co. v. Pickelseimer, 253 Ky. 11, 68 S.W.2d 760 (1934) 763; KRS 391.010 (descent and distribution); and civil law chart of consanguinity in degrees, Webster's Collegiate Dictionary (1961 ed.) p. 176.
We conclude that the phrase "next of kin" , as it appears in KRS 72.425, refers to one or more persons in the nearest degree of blood relationship to the decedent. The term embraces all of the applicable class of nearest blood kin. Where decedent left children behind, the written consent of all of the childre of decedent would have to be obtained if a non-coroner's case autopsy is to be conducted.