<continued...>

rights are being given property status, and the rights in the body would seem to be of no less significance.
Further, the rights to the body are rights relative to a discrete, tangible object, and thus fall closer to the traditional property norm than the class of government entitlements discussed earlier. Additionally, because the "taking" involved in the presumed consent laws is against an otherwise general right, none of the conceptual difficulties involved in the repeal of government benefits are involved. A different case would be presented were a state to alter its laws to make organ removal permissible, even in the face of objections by the next of kin. [FN146] Such *560 an action would destroy the underlying substantive right, not merely alter the procedures for its exercise. In that case, the law would be evaluated according to the approach taken in Hodel v. Irving and a much closer examination of the strength of the common-law right to possession for burial would be required. [FN147]
As a third and complementary approach, a normative argument can be made for recognizing a property right in the body. As Professor Van Alstyne put it, "in certain situations a literal freedom of private property may be indispensable to each person's sense of self." [FN148] The laborious process of disentangling the body from the self should demonstrate that the body is deserving of the full protections of property, including the ability to direct its disposition upon death. [FN149]

*561 III. "DON'T LET HIM STEAL YOUR HEART AWAY": [FN150] DUE PROCESS FOR

ORGAN REMOVAL

Assuming that one's interests in nonintegrated [FN151] body parts constitute property rights for the purposes of procedural due process, are laws allowing their nonconsensual removal consistent with constitutional requirements. Due process has been characterized as "a principle basic to our society." [FN152] When the state acts to deprive a person of life, liberty, or property, the "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner."' [FN153] When evaluating presumed consent laws under the due process clause, three basic issues are raised: 1) Is the removal of organs state action? 2) Has there been a deprivation within the meaning of the fourteenth amendment? and 3) What process is due? [FN154]

A. Coroners as State Actors
Because this Note deals only with organ removals authorized by the coroner, the nature of the action turns in part on the status of the coroner. That the coroner is an agent of the state is not disputed. [FN155] The coroner's official powers are prescribed by state law and when authorizing organ removal the coroner acts in her official capacity. [FN156] The same would be true even if the coroner herself had not performed the removal, but had instead authorized a third party to do so. [FN157] In both cases, the individuals would be acting in a manner authorized by state law and thus fall within section 1983's requirement of action *562 "under color of" state law. [FN158]

B. Removal of Tissues as a Deprivation
When organs are removed prior to notification and without consent, a deprivation appears to have occurred. Whatever rights the deceased or the next of kin may have had in the organ are permanently destroyed. The action is also intentional: the coroner has made an affirmative decision to remove, or authorize the removal of the corneas. [FN159] Supreme Court cases considering the issue of deprivation have noted that even a temporary interference with property rights can amount to a deprivation. [FN160] Here, where the impact of the state interference with the property right is permanent and irreversible, a deprivation requiring the application of due process has occurred. [FN161]

C. What Process is Due
The Supreme Court set out a three part balancing test in Mathews v. Eldridge [FN162] to determine what process is due. [FN163]
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [FN164]
The choices to be compared by this test are that of no notice whatsoever under presumed consent, [FN165] a reasonable attempt to notify under *563 UAGA(1987) [FN166] and an absolute duty to notify under UAGA(1968). [FN167]
Before addressing the particular balancing test, since deprivations in these cases are pursuant to established state procedures, some form of predeprivation procedure is required. [FN168] The balancing test is useful for assessing the scope of that process, but it would appear settled that exclusive reliance on post-deprivation remedies is insufficient. [FN169]
1. Private interest affected by official action.--The interest at stake here is that of a property right [FN170] in the tissue to be removed. In the case of corneas, the physical amount taken is quite small. The magnitude of the invasion increases substantially, however, where visceral organs are involved. The degree of importance this right has to any given individual will vary. A religious individual who is opposed to the removal of bodily tissues on religious grounds will have a tremendous amount at *564 stake. [FN171] Alternatively, a person willing to donate anyway would arguably have very little at stake. Such a case by case assessment is unfit, however, for the formulation of a constitutional rule since individual valuations cannot be predicted ahead of time.
A better way to assess the value of the interest at stake is to determine the strength of the right asserted as compared to other competing interests. In cases involving the termination of government benefits, the private interests involved are weak since in many of the cases the individual had only a conditional claim to the entitlement. In fact, in most of the cases, a hearing, while giving an opportunity to respond to the proposed government action, would probably not have much effect on the ultimate termination of benefits. [FN172] While the private interests at stake may seem strong from a social point of view, they are weak legally since the relevant state laws have sought to condition significantly their vindication. [FN173] In the case of bodily tissues, if the deceased or the next of kin are afforded the opportunity to refuse tissue donation, such a refusal serves as the final word. [FN174] Looked at from this perspective, the private interest at stake is much stronger.
Because organ donation is currently an absolute right, this case is different from Mathews and the cases applying its balancing test since *565 there the Court was dealing with rights that were far less firm. [FN175] The right to government benefits or to a job were clearly terminable under a variety of circumstances no matter how loud the plaintiff protested. Under those conditions, some form of subjective assessment of the strength of the plaintiff's interest was required. Here, where the plaintiff's interest is given decisive weight (assuming the plaintiff has an opportunity to assert her interest), the significance of this factor alone may be enough to justify at least a minimum of predeprivation process.
2. Risk of error and value of additional safeguards.--The risk of error in these cases is difficult to characterize. Assuming that the right to donate or to refuse belongs to the decedent or the next of kin, it could be maintained that any decision that denies them the opportunity to choose is in error. This would arguably be so even if their choice would have been in favor of donation. [FN176]
To focus the competing interests, consider only those situations where donation would have been refused as constituting erroneous deprivations. [FN177] Different surveys have been conducted over the years to determine the percentage of people willing to donate their organs. They indicate that the overall chance is high that the coroner's decision to remove organs will conflict with the wishes of the decedent or the next of kin. These surveys discovered that approximately 70% of Americans support organ donation. [FN178] When asked about specific organs, however, the percentage drops off significantly. [FN179] This latter fact, coupled with the low percentage of Americans who fill out donor cards or authorize donation on the back of their licenses [FN180] casts considerable doubt on figures used by those in favor of opt-out laws. Studies of persons asked if they would donate the organs of a deceased *566 relative yield similarly low figures. [FN181]
An extremely conservative estimate of 20% as the number who would refuse to donate if asked still leaves a very significant possibility of error. [FN182] Given the permanent nature of these deprivations, and therefore the lack of opportunity to redress errors post-deprivation, this factor weighs heavily in favor of some sort of predeprivation notice and opportunity to respond. [FN183]
The second half of this factor is the probable value of any additional procedural safeguards. A somewhat uncertain result occurs under the UAGA (1987) which requires reasonable efforts to notify, and takes into account the life of the organ. [FN184] Assuming that the next of kin could be contacted in even half of the cases and only 20% of those reached refuse, a 50% reduction in the error rate can be achieved. This is certainly significant, especially given the minimal effect on government interests. [FN185] An absolute requirement of consent would obviously eliminate the error rate entirely, but the costs begin to rise substantially. Under this approach, even organs that would have been donated may not be taken since they cannot be identified ex ante.
3. Government interest served by lesser procedures.--The initial interest to be considered is the value to the government of having organs, such as corneas, available for transplant and therapy. At the individual human level this interest translates into saving many patients from blindness, and death in the case of vital organs, to the extent that these laws increase the number of available organs. Using the UAGA procedure of reasonable efforts to notify, this interest will only be affected to a minimal degree. When efforts to notify the next of kin are unsuccessful, the government may still remove corneas. Where the next of kin are contacted and agree to donation, again the government loses nothing.
Although the procedures required may add a limited delay, because the reasonableness of the effort is defined in relation to the useful life of the tissue, the government's interest in not wasting useful tissues is safeguarded. Only when the next of kin refuse is the government's *567 interest in corneas at issue. Even this conflict is a false one, however. Given the government's support of the final authority of the next of kin's wishes where known, it could be argued that it has no interest in taking bodily tissues against the next of kin's will. [FN186]
Fiscal and administrative burdens are also to be considered as part of the government's interest. The costs created by the alternative procedures themselves are minimal. A prompt phone call, made earlier rather than later, and the additional time taken by personnel are the only costs. [FN187] Since these steps would be taken eventually in order to notify the next of kin of the death, requiring the steps to be taken sooner would probably not impose significant additional costs. In many instances, the efforts required may be no more than going out to the waiting room to ask a relative who is already present, but has not thought to take affirmative steps to make her desires known.
Balancing the significant private interests at stake, the nature of the right as it now stands, and the minimal government interest in having no procedures whatsoever, a reasonable efforts requirement should be required to meet the values embodied in the due process clause. Recognizing that a valid interest is at stake and the chance for error significant, it would reduce the due process clause to a mere platitude to claim that no process was due under these circumstances.

IV. "DON'T GO [T]AKING MY HEART" [FN188]

The fifth amendment provides that "nor shall private property be taken for public use, without just compensation." [FN189] This clause is made applicable to the states through the due process clause of the fourteenth amendment. [FN190] The takings clause has been the subject of much attention in recent years, with several major cases portending new directions in takings clause jurisprudence. [FN191] Even these recent cases, however, start from the basic assumption that the purpose of the *568 takings clause is to prevent the imposition of costs on the few which in fairness should be borne by the many. [FN192] Thus, while the government has the power to take private property that it needs, that power is conditioned upon the payment of just compensation.
When analyzing a claim under the takings clause, three issues present themselves. Initially, has a taking of private property occurred? Secondly, has that property been taken for public use? Finally, what constitutes just compensation?

A. Physical Invasion as a Taking of Property
When analyzing whether a taking has occurred, the courts must determine whether a government action that could be properly characterized as regulatory is sufficiently onerous to require compensation. [FN193] In these cases, the government merely restricts the use of the property, though recognizing the individual's ownership and other rights in that property. Determination of whether a taking has occurred in such cases requires a multifactor balancing test that considers the government's interest, the scope of the restriction and the diminution in the value of the property. [FN194]
In the case of physical appropriations, a different rule applies. Where the challenged government action "is a permanent physical occupation of property, . . . cases have uniformly found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner." [FN195] This "per se" rule for physical occupation simplifies the matter considerably with regard to organs. When the coroner takes a piece of tissue, cuts it out, and transfers it to the possession of an eye bank or other appropriate recipient, there can be no doubt that a permanent physical occupation has occurred. This situation is no different from the government condemning a one foot strip of private land, or confiscating the tires on a private car. That the appropriation is only a *569 small part of the total property is of no significance in determining whether a taking has occurred. [FN196]
Viewed from this perspective, the initial step in the takings analysis is straightforward. However, this analysis assumes that the property right in question has vested in the next of kin at the time of the appropriation. While this assumption is defensible, [FN197] a plausible case could be made that the property rights remain vested in the deceased. If this is the case, the government action might seem closer to the restriction of merely two strands in the bundle of rights: the rights to pass on property through descent or devise. While this interpretation is problematic, [FN198] it has sufficient plausibility to justify a closer examination.
The recent case of Hodel v. Irving [FN199] involved a situation closely analogous to this altered assumption. At issue was section 207 of the Indian Land Consolidation Act of 1983, [FN200] which provided that " n o undivided fractional interest in certain Indian lands under a certain size and value . . . shall desce nd by intestacy or devise but shall escheat to that tribe . . . ." [FN201] Acknowledging that the proper framework for analysis was the multifactor inquiry used in evaluating regulations, Justice O'Connor nonetheless found the law to constitute a taking of the decedent's property. Given her analysis of each of the factors, this conclusion evidenced a departure from past cases. Justice O'Connor *570 initially noted that while the individual interests lost were potentially de minimis, the value of the total number of interests lost was significant. [FN202] She then conceded that all of the property interests had not been taken since the decedents could have passed the interests through inter vivos gift, that there were no investment-backed expectations in passing on the property and that there was at least some "'average reciprocity of advantage"' to the owners. [FN203] By the usual application of the multifactor test, this does not appear to be a regulatory taking.
The decisive factor for Justice O'Connor and the six other Justices who concurred in the opinion was the nature of the government's action: "[T]he character of the Government regulation here is extraordinary. . . . [T]he regulation here amounts to virtually the abrogation of the right to pass on a certain type of property--the small undivided interest--to one's heirs." [FN204] Thus, in the face of facts that would normally preclude even the slightest thought of a taking under Penn Central, [FN205] the Court elevated certain strands in the bundle of rights to an exalted status.
While the presumed consent laws do not abolish descent and devise for everyone under all circumstances, given the lack of required notice, the result is virtually the same for those who come under the coroner's jurisdiction. Presuming that the right to pass on property after death will remain in its current state of grace, even the recharacterization of these laws as regulations should not preclude a finding that a taking has occurred.

B. Transplanting Human Organs as a Public Use
After the Supreme Court's decision in Hawaii Housing, [FN206] it would seem difficult to argue that anything was a nonpublic use. Deference is uniformly given to the state's determination of what is for the benefit of the public and hence this aspect of the takings clause has ceased to play any role in analyzing this issue. [FN207]
*571 The argument for public use, however, is not completely unpersuasive. The state has a clear interest in improving public health through helping the blind and those in need of other transplants. The argument, however, proves too much: The state always has an interest in increasing the well-being of every person under its jurisdiction. Accordingly, every transfer of property would advance the state interest to some extent. This appears to be a weak thread on which to hang the claim of public use when transferring property via state action. In light of Hawaii Housing, however, a weak thread may be all that is required. The thread of public use in organ transplants would appear to be no weaker than necessary to be approved.

C. Just Compensation
Traditionally, "just compensation" has been determined by the fair market value of the property immediately prior to the taking. In the case of organs, this is a difficult standard to apply because the market for organs is banned for most uses. [FN208] There are several possible directions in which to proceed in the absence of a readily obtainable market price. One could search for a fair market value based on that small aspect of the organ market that is permitted to exist. [FN209] This is less than satisfactory, however, since such a market at the moment does not seem to exist, or exists in such a small degree as to make it difficult to use for these purposes. [FN210] Additionally, using this limited market as the base would seem to give undue weight to the government's artificial restriction on the sale of organs for what are otherwise approved uses, thus preventing the measurement of actual economic value. [FN211]
A second approach would be to find some intrinsic value to the tissue being removed. This approach, however, seems too subjective without adequate external reference points. Without a basis to determine such intrinsic value, this approach might eventually collapse the intrinsic value test into a market oriented test, or some other test that would be better applied overtly.
A more reasonable approach, as suggested by one commentator, *572 would be to value just compensation at the same level as the next of kin would recover in a suit for wrongful interference with a corpse. [FN212] While such recovery tends to reflect the emotional distress suffered by the next of kin, rather than the value of the cadaver itself, it is one of the few plausible surrogates available. The commentator concludes that because the value of recoveries in such cases "would be difficult to ascertain, the statute authorizing removal should provide for it. . . . perhaps varying in amount with the nearness of the relationship between the survivor and the deceased." [FN213]
A final possibility would be to turn to the law of conversion. The question of how to value objects that do not have a market is often raised in that context, [FN214] and its methods could be imported into the just compensation area. The Supreme Court itself has recognized the possibility of such an alternative approach in appropriate circumstances. [FN215]

D. The Problem of Autopsies
One final issue is what impact the preceding analysis would have when applied to autopsy laws. In many ways, the laws allowing the coroner to perform an autopsy have an identical effect on the body of the deceased as do the presumed consent laws: portions of the body are removed without consent. These laws go even further by permitting an autopsy even in the face of an explicit protest. [FN216] If the body is property, perhaps this action also constitutes a taking. However, the two types of governmental action can be distinguished.
The main bases for distinction lies in the purposes behind a state-mandated autopsy and the uses to which the removed tissue is put. Autopsy laws in general apply where the cause of death is unknown or the *573 death is surrounded by suspicious circumstances. [FN217] The state's interest in such cases is to discover the true cause of death so that appropriate measures may be taken to protect the public if necessary. Where the death was found to have resulted from criminal activity or from contagious disease, for example, the state would then institute measures to track down the responsible criminal or to protect the public from the potential spread of disease. When translated into the jurisprudence of the takings clause, these actions would be akin to preventing a recurrence of other behavior harmful to the public. [FN218] Such actions have never been held to constitute takings because an implicit condition to the ownership of all property is that it not be utilized in a deleterious manner. [FN219]
This argument breaks down, however, once it is recognized that it is not the corpse that poses the threat to the public, but some external actor--either the criminal or other person who might be a carrier of the disease that led to this person's death. The body merely possesses information that might lead to the apprehension of other wrongdoers but in itself causes no harm. Viewed in this way, an autopsy is not designed to prevent a noxious use of property, rather it extracts a public benefit by acquiring information.
The line to be drawn between preventing a harm and extracting a benefit may be uncertain, but it nonetheless plays a central role in the debate over regulatory takings. Rather than try to provide a broadly applicable theoretical approach to the problem, this Note relies on analogies only to show that autopsies fall on one side of the line while organ removals fall on the other. [FN220] The closest example would be that of property taken for evidence in the course of a police investigation. Upon investigation of a crime, the police certainly have the right to seize property that might be evidence and hold it for the purpose of analysis and investigation. A murder weapon, the getaway vehicle, a blood-stained carpet and numerous other items come to mind. If, in the course of analysis, the property itself is somehow consumed or destroyed, no takings claim will lie. [FN221] The government's action in performing *574 an autopsy is almost identical to this scenario. In order to protect the public from some imminent harm, the coroner must investigate suspicious deaths, and the dead body is the only evidence. Where part of the body must be taken as a necessary incident to that investigation (blood and tissue samples, etc.), such takings should not require compensation. Allowable takings are limited to those that are necessary incidents to the investigation, and, in fact, this limitation comports well with the established autopsy jurisprudence, which requires the coroner to return the unused portions of the body. Excessive autopsies are actionable. [FN222]
This rationale removes autopsy laws from the scrutiny of the takings clause, but not necessarily from the due process clause. [FN223] This is not surprising since the fourth amendment in all likelihood provides sufficient procedural protections, and would apply to all autopsies (being both a search and a seizure). The difference here is that there is a lower level of process due since the governmental interest is concededly stronger and the private interest weaker given the implied servitude. Autopsies for science, however, would not be exempt from the arguments of this Note since they are more analogous to the extraction of a public benefit.

CONCLUSION

With changing times come changing values and new ways of perceiving old and familiar things. Because the human body has acquired the de facto characteristics of property, though not the name, it is time for the law to catch up with reality. The values that underlie both the due process and the takings clauses contain as much meaning when the government appropriates the body of one's next of kin as when it takes one's television set. Applying constitutional protections in both circumstances would ensure that if "she's got Bette Davis['s] eyes," at least they've been paid for.

[FNa1]. J. DeShannon & D. Weiss, Bette Davis Eyes (1981).

[FN1]. The word "property" as used throughout this Note will have two possible meanings. Initially, the word may refer to the bundle of rights that a person has relative to a thing, the res. See infra notes 98-101 and accompanying text. Alternatively, the word may be used to refer to the res itself, the object of property rights.

[FN2]. Numerous commentators, spanning a period of over twenty years, have advocated some form of reduction of the consent requirement for organ donation. Many of the proposals actually go far beyond the current laws which limit the role of consent only in coroner's cases. See, e.g., Caplan, Organ Transplants: The Cost of Success, Hastings Center Rep., Dec. 1983, at 23, 27-28 (Dec. 1983) (suggesting that hospitals be required to salvage all suitable organs unless an objection is known); Dukeminier & Sanders, Organ Transplantation: A Proposal for Routine Salvaging of Cadaver Organs, 279 New Eng. J. Med. 413 (1968) (burden on individual or next of kin to object); Muyskens, An Alternative Policy for Obtaining Cadaver Organs for Transplantation, 8 Phil. & Pub. Aff. 88, 99 (1978) (same); Note, Compulsory Removal of Cadaver Organs, 69 Colum.L.Rev. 693 (1969) [hereinafter Note, Compulsory Removal] (proposing legislation requiring compulsory removal of organs, regardless of objection); Note, Consent and Organ Donation, 11 Rutgers Computer & Tech. L.J. 559, 571 (1985) (objection to removal should be allowed only by decedents while they were alive).
Surprisingly, few of these commentators have given any in depth consideration to the takings or due process issues raised by these proposals. Some of the exceptions include Dukeminier, Supplying Organs for Transplantation, 68 Mich.L.Rev. 811, 833-35 (1970) (dead body not property hence not subject to takings clause); Silver, The Case for a Post-Mortem Organ Draft and a Proposed Model Organ Draft Act, 68 B.U.L.Rev. 681, 712-15 (1988) (same); Note, Compulsory Removal, supra, at 695-700 (compulsory removal would constitute a taking and require compensation).

[FN3]. 8A U.L.A. 15 (1983). This is the original version of the Act and the one adopted by most states. The most recent amended version was issued in 1987 and contains several significant changes. 8A U.L.A. 2 (Supp.1989).

[FN4]. B. Crewe & K. Nolan, My Eyes Adored You (1975).

[FN5]. See Matthews, Whose Body? People as Property, 36 Current Legal Probs. 193, 196 (1983) (a "thriving trade in digging up buried cadavers and selling them for medical dissection" existed in the late 1700s).

[FN6]. See Doodeward v. Spence, 6 C.L.R. 406, 417 (Austl. 1908) (showman displaying the preserved corpse of two-headed stillborn child); cf. Matthews, supra note 5, at 193 ("In University College itself the mortal remains of Jeremy Bentham have sat on view to all and sundry for the last 150 years.").

[FN7]. J. Lafoy, The Complete Coiffeur: An Essay on the Art of Adorning Natural, and of Creating Artificial, Beauty 101-05 (1817) (discussing the history of wigs in 17th century England and France).

[FN8]. Murray, Merrill & Harrison, Renal Hemotransplantation in Identical Twins, 6 Surgical F. 432 (1955).

[FN9]. J. Swerdlow, Matching Needs, Saving Lives: Building a Comprehensive Network for Transplantation and Biomedical Research 14 (1989); Specter, When Doctors Profit from a Patient's Discarded Tissues, Wash. Post Nat'l Weekly Ed., Jan. 16-22, 1989, at 39 (8967 kidney transplants in 1987, reproducing figures from the American Council on Transplantation).

[FN10]. The various organs usable for transplantation or therapeutic purposes continue to increase. In 1988, transplants performed in the United States included 1647 hearts, 1680 livers, 243 pancreases, 74 heart/lung combinations and 31 lungs. J. Swerdlow, supra note 9, at 14. In 1987, some of the numbers were 35,000 corneas, 1512 hearts, 1182 livers and 1659 transplants of bone marrow. Specter, supra note 9, at 39 (diagram). The recent support by a federal advisory panel for the use of fetal tissue in research and therapy raised the possibility of additions to the list. See Leary, U.S. Panel Backs Research Use of Fetal Tissue from Abortions, N.Y. Times, Sept. 17, 1988, at 1, col. 3; see also McAuliffe, A Startling Fount of Healing, U.S. News & World Rep., Nov. 3, 1986, at 68 (describing treatments using fetal blood, brain, adrenal and pancreatic cells transplanted into adults). As things currently stand, however, the process of finding uses for fetal tissue may be slowed by the Bush Administration's extension of a ban on federal financing of research using such tissue. Hilts, Citing Abortion, U.S. Extends Ban on Grants for Fetal Tissue Work, N.Y. Times, Nov. 2, 1989, at A1, col. 4.

[FN11]. For newborns, if the transplant does not occur within the first few months after birth, the vision center in the brain fails to develop properly and the person will be blind for life even if a later transplant is made. See State v. Powell, 497 So. 2d 1188, 1190-91 (Fla. 1986) (state interest in preventing blindness in newborns requires transplants during first few months of life for afflicted infants), cert. denied, 481 U.S. 1059 (1987).

[FN12]. The antirejection drug cyclosporine has been in widespread use for approximately six years with considerable success. Radical forms of radiation therapy, currently under investigation, appear promising as an alternative to drug therapy, which has serious side effects and is very expensive. Blakeslee, Doctors Test Radiation to Combat Rejection in Organ Transplants, N.Y. Times, Nov. 1, 1988, at C3, col. 1.

[FN13]. A cell line derives from the tissue of some living creature. Cells can be kept alive independent of the original organism and can continue to divide and grow. The HeLa cel line, for example, derived from a carcinoma of the cervix of a woman who died in 1951, is used by "medical and research laboratories the world over." W. Keeton, Biological Science 684 & n.4 (3d ed. 1980); Jones, McKusick, Harper & Wuu, The HeLa Cell and a Reappraisal of its Origin, 38 Obstetrics & Gynecology 945 (1971); see also Office of Technology Assessment, U.S. Congress, Ownership of Human Tissues and Cells 31-35 (New Developments in Biotechnology No. 1, 1987) [hereinafter Ownership of Human Tissues] (use of cell cultures at both the basic research and commercial levels).

[FN14]. This commercial potential has already led to a number of legal battles concerning the rights to human cell lines. See Holden, Hayflick Case Settled, 215 Sci. 271 (1982) (out-of-court settlement concerning the rights to cell lines of the first normal human cells established in culture); Ownership of Human Tissues, supra note 13, at 4 (dispute over ownership of hybridoma cell line developed from patient tissue settled out of court); Labaton, Spleen Suit Vexes Biotech Industry, N.Y. Times, Feb. 6, 1989, at D2, col. 1 (pending litigation over a patient's right in a cell line derived from his spleen). The latter case is discussed in greater detail infra notes 53-61 and accompanying text.

[FN15]. Labaton, supra note 14, at D2, col. 1 (value of one cell line estimated at about $3 billion).

[FN16]. Biotech Comes of Age, Bus. Wk., Jan. 23, 1984, at 84. While this Note will focus on the use of cadaveric tissue for transplantation, the issues raised also have implications for other scientific and commercial uses of such tissues. The same is true for tissues derived from live persons either through donation or after removal in the course of therapeutic surgery. See Note, Toward the Right of Commerciality: Recognizing Property Rights in the Commercial Value of Human Tissue, 34 UCLA L.Rev. 207 (1986). These other areas raise additional issues that will only be alluded to briefly in the course of the discussion on cadaveric tissues used for transplant and therapy.

Diamond v. Chakrabarty, 447 U.S. 303 (1980) (genetically engineered micro-organism held patentable subject matter); Public Citizen v. Young, 831 F.2d 1108 (D.C. Cir.1987) (rejecting an exception to the Delaney Clause for substances having a de minimis risk of inducing cancer), cert. denied, 108 S.Ct. 1470 (1988); Foundation on Economic Trends v. Heckler, 756 F.2d 143 (D.C. Cir.1985) (challenge to the deliberate release of genetically engineered micro-organisms into the environment); In re Baby M, 109 N.J. 396, 421-44, 537 A.2d 1227, 1240-51 (1988) (invalidating surrogate motherhood contract as conflicting with N.J. law and public policy);In re Doe, 104 A.D.2d 200, 481 N.Y.S.2d 932 (1984) (authorizing bone marrow transplant from severely mentally retarded person to his brother); Sherman, Embryo Cases: Different Views, Nat'l L.J., Oct. 2, 1989, at 21 (Maryland case holding frozen embryos to be human beings, not property, compared with Virginia case holding the opposite).

[FN18]. Laws regulating blood and semen donation, live organ donation and human experimentation, while certainly related to the topic of this Note, involve a number of additional unique considerations that would be better left to separate and more detailed treatment than is possible here.

[FN19]. Some notable contributions include Sadler, Sadler, Stason & Stickel, Transplantation--A Case for Consent, 280 New Eng. J. Med. 862 (1967); Vestal, Taber & Shoemaker, Medico-Legal Aspects of Tissue Homotransplantation, 18 U.Det.L.J. 271 (1955). Additional contributions during the campaign for state adoptions of the UAGA include Dukeminier, supra note 2; Louisell, The Procurement of Organs for Transplantation, 64 Nw.U.L.Rev. 607 (1969); Sadler, Sadler & Stason, Transplantation and the Law: Progress Toward Uniformity, 282 New Eng. J. Med. 717 (1970); Sadler & Sadler, Transplantation and the Law: The Need for Organized Sensitivity, 57 Geo. L.J. 5 (1968).

[FN20]. 8A U.L.A. 16 (1983).

[FN21]. See 8A U.L.A. 22-23 (Supp. 1989) (table of state Anatomical Gift Acts). The UAGA has served as the basic structural model for the various state laws. In general this Note will discuss the provisions of the UAGA itself and point out the differences in actual state law only where they are relevant to the issue being discussed.

[FN22]. Id. at 2.

[FN23]. SeeCal. Health & Safety Code § 7150 (West Supp.1990) (table listing seven jurisdictions that have adopted the UAGA(1987)).

[FN24]. In authorizing the donation of any "part" of the body, the 1968 Act defines "part" as "organs, tissues, eyes, bones, arteries, blood, other fluids and any other portions of a human body." UAGA(1968) § 1(e).
Not all uncertainty was removed, however. Both the 1968 and 1987 Acts define "decedent" to include a stillborn infant or fetus. UAGA(1968) § 1(b); UAGA(1987) § 1(2). Whether stillborn modifies both infant and fetus is unclear. The status, therefore, of fetuses resulting from abortions remains unresolved.

[FN25]. UAGA(1968) § 3 provides:
The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:
(1) any hospital, surgeon, or physician, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or
(2) any accredited medical or dental school, college or university for education, research, advancement of medical or dental science, or therapy; or
(3) any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or
(4) any specified individual for therapy or transplantation needed by him.

[FN26]. UAGA(1968) § 2(a) provides that "[a]ny individual of sound mind and 18 years of age or more may give all or any part of his body for any purpose specified in section 3, the gift to take effect upon death." The following subsection, however, only allows the next of kin to authorize a donation "in the absence of actual notice of contrary indications by the decedent." Id. § 2(b).

[FN27]. Id. § 2(b).
Where the decedent has not previously made her wishes known the following persons, in order of priority stated . . . may give all or any part of the decedent's body for any purpose specified in section 3:
(1) the spouse,
(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 authorized or under obligation to dispose of the body.
The 1987 Act, § 3(a), adds "a grandparent of the decedent" after brother or sister and eliminates the former number (6).

[FN28]. While the UAGA(1968) did not explicitly address when people would be liable, it was enacted as a permissive statute against a background of laws restricting unauthorized disection of the human body. See, e.g., N.Y. Pub. Health Law § 4210-a (McKinney 1985)(unlawful dissection of a dead body is a misdemeanor).

[FN29]. The Act left this sticky issue to the individual states. A number of states ultimately chose to ban the sale of organs for transplantation, see, e.g., Ill.Ann.Stat. ch. 110 1/2, ¶ 308.1 (Smith-Hurd Supp.1989), and in 1984 the federal government also imposed a ban on the sale of organs affecting interstate commerce. National Organ Transplant Act, Pub.L. No. 98-507, Title III, § 301, 98 Stat. 2346 (1984) (codified at 42 U.S.C. § 274e (Supp. V 1987). The 1987 version of the UAGA also elects to ban organ sales. UAGA(1987) § 10.
This issue has sparked considerable debate in both the medical and legal literature. See generally, Schwartz, Bioethical and Legal Considerations in Increasing the Supply of Transplantable Organs: From UAGA to "Baby Fae," 10 Am.J.L. & Med. 397, 407-09 (1985) (describing current debate over use of altruistic or market-based system of organ aquisition). Perhaps the most famous writing on the subject is R. Titmuss, The Gift Relationship (1971), where the virtues of a nonpaid system of blood collection are set forth. The principles developed in this book have set the framework for much of the subsequent writings on payment for organs. Commentators opposed to the sale of organs include Murray, Gifts of the Body and the Needs of Strangers, Hastings Center Rep., Apr. 1987, at 30, 38 ("[G]ifts of the body, [as opposed to sales,] . . . connect us in our mutual quest to relieve suffering and to pursue our good, separately and together."); Note, Source Compensation for Tissues and Cells

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