“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.
Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.
A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.
Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner.
Regarding those who are likely to have moderate objections, there seemed to us to be a meaningful potential for persuasion, mutual understanding, and cooperation, and in turn the possibility of either conducting a full-blown autopsy without sacrificing the religious commitments of the family or conducting a limited autopsy without sacrificing the legal, medical, or social objectives that the post-mortem examination process serves.
Regarding those who are likely to have strong objections, however, there seemed to us to be substantially less potential for common ground. At that point of the presentation, in fact, we turned largely to what it would take to override religious objections pursuant to state and federal law, whether before the fact (if seeking a court order) or after (if defending against a legal action). In particular we noted that the Wisconsin Constitution, as interpreted by the Wisconsin Supreme Court, may require that a government action such as an autopsy, when confronted by a religious objection, be the “least restrictive alternative” of achieving the government’s objective. In other words, if the goals of the autopsy can be achieved by techniques that are less burdensome on religious beliefs, then those alternative techniques must be employed.
One possible means of satisfying this standard—or of avoiding, in the first instance, a clash between a legally mandated or advised autopsy and a strong religious objection—comes by way of technology. Specifically, recent years have witnessed the increased use and improvement of the virtual autopsy, or “virtopsy” as it is sometimes (and somewhat awkwardly) called. This method involves conducting non- or minimally-invasive imaging of the body (e.g., CT and MRI scans) in order to determine the cause, as well as rule out non-causes, of death. Either alone or in combination with minimally invasive withdrawals of blood or excision of other tissue for toxicological assessment, virtual autopsies appear capable of achieving comparable rates of accurate determination in at least some circumstances, while concurrently respecting the religiously-based wishes of the deceased or surviving family members.
In the November 2012 issue of Scientific American, there is a fine article on this topic titled “Virtues of the Virtual Autopsy,” written by journalist and author Maryn McKenna. What McKenna found was that, “[a]fter about a decade of research, proponents concede that various difficulties—including high cost, competition for access to imaging machines and some inherent limitations of the technology—will likely prevent virtual autopsies from fully replacing the hands-on version. Nevertheless, the new techniques are answering cause-of-death questions that have frustrated traditional autopsies and are sidestepping religious objections.” According to a pathologist whom McKenna quotes, virtual autopsies can actually be “better for examining trauma, for wartime injuries, [and] for structural defects,” though they are not as optimal for examining “tumors, infections and chronic conditions . . . .”
The virtual autopsy, in short, may in certain circumstances provide a viable technological means of concomitantly furthering the objectives and values of legal, medical, and religious communities alike.
Eric Bland, Virtual Autopsies Offer Clues without the Knife, Discovery News, Dec. 21, 2009.
Lauren R. Boglioli & Mark L. Taff, Religious Objection to Autopsy: An Ethical Dilemma for Medical Examiners, 11(1) Am. J. Forensic Med. 1 (Mar. 1990).
Elizabeth C Burton & Kim A Collins, Religions and the Autopsy, Medscape Reference.
Roger E. Mittleman et al., Practical Approach to Investigative Ethics and Religious Objections to the Autopsy, 37(3) J. Forensic Sci. 824 (May 1992).
Ian S.D. Roberts et al., Post-Mortem Imaging as an Alternative to Autopsy in the Diagnosis of Adult Deaths: A Validation Study, 379 Lancet 136 (2012).