2005 Regular Session
To: Public Health and Human Services
By: Representative Moak
AN ACT TO DEFINE THE PERSONS WHO HAVE THE RIGHT OF DECISION OR CONSENT REGARDING DISINTERMENT OF A BURIED HUMAN BODY; TO AMEND SECTIONS 41-37-25 AND 41-39-35, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) After a human body has been buried, the following persons, in the order of priority stated, shall have the right of decision or consent regarding disinterment of the body for relocation to another burial site, for an autopsy not pursuant to a court order or for any other reason:
(a) A surviving spouse of the decedent, as long as the spouse has not remarried.
(b) Children of the decedent over the age of eighteen (18) years.
(c) Parents of the decedent.
(d) Brothers and sisters of the decedent over the age of eighteen (18) years.
(e) The guardian of the person of the decedent at the time of his death.
(f) Any other next of kin of the decedent.
(2) If a human body has been buried for more than seventy-five (75) years and there is no known next of kin of the decedent, the Department of Archives and History may consent to the disinterment of the body for relocation to another burial site.
(3) Whenever a buried human body is to be disinterred for any reason other than the performance of an autopsy, the State Department of Health shall be notified.
(4) Nothing in subsection (1) of this section shall give a right to any person to prevent an autopsy from being performed pursuant to court order.
SECTION 2. Section 41-37-25, Mississippi Code of 1972, is amended as follows:
41-37-25. An autopsy may be performed without court order by a qualified physician when authorized by (a) the decedent, during his lifetime, or (b) any of the following persons who shall have assumed custody of the body for the purpose of burial: a surviving spouse, either parent or any person in loco parentis, a descendant over the age of eighteen (18) years, a guardian, or the next of kin. In the absence of any of the foregoing persons any friend of the deceased who has assumed responsibility for burial, or any other person charged by law with responsibility for burial, may give such consent. If two (2) or more persons have assumed custody of the body of an adult for purposes of burial, the consent of one (1) such person shall be deemed sufficient.
In the case of a minor, however, the consent of either parent shall be deemed sufficient, unless the other parent gives written notice to the physician who is to perform the autopsy of such parent's objection thereto prior to the commencement of the autopsy. In the event that neither parent has legal custody of the minor, the guardian shall have the right to authorize an autopsy. The fees provided in this chapter for autopsies in criminal investigations shall not be applicable to this section.
No autopsy shall be held under this section over the objection of the surviving spouse, or if there be no surviving spouse, of any surviving parent, or if there be neither a surviving spouse nor parent, then of any surviving child.
If the body has already been buried, consent to disinterment of the body for an autopsy without a court order shall be governed by Section 1 of this act.
SECTION 3. Section 41-39-35, Mississippi Code of 1972, is amended as follows:
41-39-35. (a) Any individual who is eighteen (18) years of age or over and who is competent to execute a will may give all or any part of his body for any one or more of the purposes specified in Sections 41-39-31 through 41-39-51, the gift to take effect after death.
(b) Unless he has knowledge that contrary directions have been given by the decedent, the following persons, in the order of priority stated, may give all or any part of a decedent's body for any one or more of the purposes specified in Sections 41-39-31 through 41-39-51:
(1) The spouse, if one (1) survives.
(2) An adult son or daughter.
(3) Either parent.
(4) An adult brother or sister.
(5) The guardian of the person of the decedent at the time of his death.
(6) Any other person or agency authorized or under obligation to dispose of the body.
If there is no surviving spouse and an adult son or daughter is not immediately available at the time of death of a decedent, the gift may be made by either parent.
If a parent of decedent is not immediately available, the gift may be made by an adult brother or sister of decedent. If there is known to be a controversy within the class of persons first entitled to make the gift, the gift will not be accepted. The persons authorized herein to make the gift may execute the document of gift either after death or during a terminal illness. The decedent may be a minor or a stillborn infant.
If the gift is made by a person designated above, it shall be by written or telegraphic consent.
If the decedent's body has already been buried, consent to disinterment of the body for any one or more of the purposes specified in Sections 41-39-31 through 41-39-51 shall be governed by Section 1 of this act.
SECTION 4. This act shall take effect and be in force from and after July 1, 2005.