MISSISSIPPI LEGISLATURE
2018 Regular Session
To: Public Health and Human Services
By: Representative Holland
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 41-39-117, 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) The surviving spouse.
(b) A surviving child who is at least eighteen (18) years of age.
(c) A grandchild who is at least eighteen (18) years of age.
(d) Either surviving parent.
(e) A surviving sibling who is at least eighteen (18) years of age.
(f) A person acting as a representative of the decedent under a signed authorization of the decedent.
(g) The guardian of the person of the decedent at the time of the decedent's death, if a guardian has been appointed.
(h) A person in the class of the next degree of kinship, in descending order, who, under state law, would inherit the decedent's estate if the decedent died intestate and who is at least eighteen (18) years of age.
(2) Whenever a buried human body is to be disinterred for any reason other than the performance of an autopsy, prior approval of the State Department of Health shall be required.
(3) 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 * * *
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 * * * before the
beginning of the autopsy. * * * If 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 41-39-117, Mississippi Code of 1972, is amended as follows:
41-39-117. (a) Subject to subsections (b) and (c) and unless barred by Section 41-39-113 or 41-39-115, an anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:
(1) An agent of the decedent at the time of death who could have made an anatomical gift under Section 41-39-107(2) immediately before the decedent's death;
(2) The spouse of the decedent;
(3) Adult children of the decedent;
(4) Parents of the decedent;
(5) Adult siblings of the decedent;
(6) Adult grandchildren of the decedent;
(7) Grandparents of the decedent;
(8) An adult who exhibited special care and concern for the decedent;
(9) The persons who were acting as the guardians of the person of the decedent at the time of death; and
(10) Any other person having the authority to dispose of the decedent's body.
(b) If there is more than one (1) member of a class listed in subsection (a)(1), (3), (4), (5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under Section 41-39-121 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.
(c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift.
(d) 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 subsection (a) of this section 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, 2018.