Thursday, October 18, 2012
By Dan Schulte, J.D.
MDA Legal Counsel
From the October 2012 issue of the Journal
A number of calls have been received recently by the MDA asking about the removal of gold crowns from the deceased prior to burial. One dentist has been asked by a local funeral home to be its dentist “on call” for the removal of gold crowns when requested by the next of kin. All would like to know whether this is legal.
Pursuant to Section 160 of Michigan’s Penal Code it is a felony to remove a portion of a dead body when doing so is not necessary “in any proper operation in embalming the body or for the purpose of a postmortem examination.” Therefore, the removal of gold crowns (or any other portion of a dead body) not in connection with embalming or a postmortem examination is illegal and is a felony in Michigan unless authorized by some other Michigan statute.
There are Michigan statutes that deal with removal of parts of a dead body, but there is no statute that would apply to make the removal of gold crowns by a dentist legal. For example, Section 10201 et. seq. of Michigan’s Public Health Code deals with the disposition of human body parts. It provides in limited circumstances that a “human organ” or a part of a human organ may be removed from a dead body, but only for the purpose of transplantation, implantation, infusion, injection, or other medical or scientific purpose, and the removal may only be performed by a licensed M.D. or D.O.
Michigan’s Anatomical Gift Law (MCL 333.10101 et. seq.) provides for the making of anatomical gifts by a decedent prior to death. However, these anatomical gifts are only allowed to be made for the limited purpose of transplantation, therapy, research or education. The procedures contained in Michigan’s Anatomical Gift Law cannot be used for the purpose of making a gift of gold crowns solely for the purpose of transferring their monetary value to someone else following death.
Finally, there are other statutes dealing with the course and conduct of autopsies that give county medical examiners and law enforcement officials the right to remove parts of a dead body for investigation, testing, etc., in the course of a criminal investigation. Obviously, these laws are not applicable to a dentist being asked to remove a decedent’s gold crowns.
Michigan’s common law has on occasion addressed the nature of the rights of the next-of-kin in and to a decedent’s body and body parts. These cases involve a variety of factual settings (for instance, disputes over whether anatomical gifts have been properly made, body parts have been returned following an autopsy, etc.). The law that has developed from these cases is that a next-of-kin has no “property right” in a decedent’s body. Instead, Michigan law provides only for a possessory right in the next-of-kin for purposes of the legal burial or cremation of the body. This means that the next-of-kin only has the right to control the burial or cremation process and not the right to remove gold crowns or any other portion of the body (unless authorized by one of the statutes discussed above).
Dentists should not remove gold crowns from a decedent’s body. The fact that the decedent may have written an authorization to remove the gold crowns prior to death does not change this advice. There is no statute or case law suggesting that such an authorization is legal or may be legally enforced. Until and unless there is such a statute or case law, the best practice would be to assume the removal of gold crowns under these circumstances would be construed to be a felony under Michigan law.