Powhida A
Albany Law J Sci Technol. 1999;9(349):1-20.
The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.
本评论中提出的问题涉及第十四条修正案是否对州立法机构施加了实质性限制，这些限制是否会挫败许多州最近为通过授权推定器官捐赠同意的法律而采取的初步尝试。最终且可能最无效的推定同意法创设了器官捐赠同意的推定。潜在器官捐赠者在其生前做出是否捐赠的选择。这种形式的推定同意法可能对增加可用捐赠器官数量的影响最小。如果验尸官不知道死者或死者家属的反对意见，它允许验尸官摘取死者的眼睛和角膜。推定同意法规应被认定为违宪，因为它们侵犯了家庭对已故亲属尸体的财产权益。然而，由于下一节所述家庭对亲属尸体的财产权益，结果是推定同意法规是违宪的。为了认定推定同意法违宪，法院将不得不认定：(a) 第十四条修正案的自由部分包括家庭决定亲属死后尸体如何处置的权利，或者 (b) 财产部分包括在尸体上既得的州法财产权益。
