dissenting.
{¶ 44} The only question we face today is whether Ohioans, upon the death of a family member, have a protected right in the decedent’s body parts that were removed and retained by a coroner for forensic examination and testing. I dissent because I believe that prior to the enactment of R.C. 313.123, which purports to give the coroner the right to dispose of such body parts, Ohio law *359gave next of kin a protected right in a deceased family member’s body. That right came from Ohio statutes and common law.
This Court’s Limited Role
{¶ 45} Our role in this case is only to make a threshold determination as to whether a protected right exists in Ohio. And if we decided that such a right did exist, the federal court would have determined whether the right rose to a level requiring constitutional protection. “Although the existence of an interest may be a matter of state law, whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the due process clause is determined by federal law. Memphis Light [Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30]. This determination does not rest on the label attached to a right granted by the state but rather on the substance of that right.” Brotherton v. Cleveland (C.A.6, 1991), 923 F.2d 477, 481-482.
{¶ 46} As the majority opinion states, the status of the law at the time of the alleged wrong provides the relevant context in this case; the plaintiffs-respondents “must show that state law in effect at the time of the incident gave them a property interest in their deceased son’s body parts.” Majority opinion at ¶ 14. The United States Supreme Court in Bd. of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548, held that “[property interests * * * are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Emphasis added.) Thus, since R.C. 313.123 was not enacted until after the events in this case arose, it is not pertinent to this case.
{¶ 47} Our role, then, is to determine whether Ohio law prior to the enactment of R.C. 313.123 provided a right to a decedent’s next of kin in the deceased’s remains. In Whaley v. Tuscola Cty. (C.A.6, 1995), 58 F.3d 1111, 1115, the Sixth Circuit Court of Appeals summarized the sources of law that are the basis for Ohioans’ rights in regard to the remains of a deceased family member:
{¶ 48} “When [Ohio case law] and the Ohio statute granting the next of kin the prior right to dispose of the body, and the Ohio Anatomical Act are taken together, it demonstrates that in Ohio there are existing ‘rules and understandings’ which grant the next of kin the right to dispose of the body by making a gift of it, to prevent others from damaging the body, and to possess the body for purposes of burial. Such rights in an object are the heart and soul of the common law understanding of ‘property.’ ”
Ohio Statutes
{¶ 49} Foremost among the rules and understandings granting the next of kin control over a decedent’s body is R.C. 313.14, which gives “[t]he next of kin * * * *360prior right as to disposition of the body of [the] deceased person.” The majority cannot get around this statute, and thus tries to ignore it. The majority waits until well into its opinion, ¶ 32, to even mention R.C. 313.14, and even then merely quotes it without discussion. Some paragraphs later, it says in a conclusory fashion that the right granted in R.C. 313.14 “does not include forensic specimens that were retained by a coroner for forensic examination and testing.” It does not deign to explain why not, because it cannot.
{¶ 50} Pursuant to R.C. 313.14, it is the right of the next of kin of the deceased to dispose of the deceased’s body. R.C. 313.14 does not list exceptions to that right. R.C. 313.14 does not define what constitutes the body, but R.C. 3705.01(C) states: “ ‘Dead body’ means a human body or part of a human body from the condition of which it reasonably may be concluded that death recently occurred.” Nothing in the Revised Code provides any reason to believe that body parts separated from the rest of the body during an autopsy do not continue to be part of the body.
{¶ 51} R.C. 313.15 establishes that the coroner’s right to control the decedent’s body is jurisdictional and temporary. The coroner has a statutory duty to perform an autopsy in certain instances, not the right to dispose of the body, and his right to control the body extends only as long as is necessary for the needs of law enforcement. R.C. 313.15 states:
{¶ 52} “All dead bodies in the custody of the coroner shall be held until such time as the coroner, after consultation with the prosecuting attorney * * * or with the sheriff, has decided that it is no longer necessary to hold such body to enable him to decide on a diagnosis giving a reasonable and true cause of death, or to decide that such body is no longer necessary to assist any of such officials in his duties.”
{¶ 53} Pursuant to R.C. 313.15, the family’s right to disposition of the body is limited only as to the time it may be exercised. By statute, the next of kin may have to wait some length of time, but the disposition of the body ultimately remains their right, and is exercised once the autopsy is complete. Implicit in the coroner’s right to perform an autopsy is his right to do what is necessary to perform the autopsy. Therefore, the coroner cannot be held responsible for any bodily fluids or tissue samples lost in the autopsy process. But the right to the disposition of all of the remaining body parts after the autopsy belongs to the deceased’s family.
{¶ 54} Further statutory support for the protected right of family members in the decedent’s body is found in Ohio’s Anatomical Gift Act, R.C. Chapter 2108. R.C. 2108.02(B) gives the next of kin the power to make an anatomical gift of any part of the body of the decedent, absent notice of the decedent’s contrary indication. Further, a family member more closely related to the decedent has *361the right to prohibit any anatomical gift from being made by a less closely related family member. The statute provides:
{¶ 55} “(B) Any of the following persons, in the order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may make an anatomical gift of all or any part of the body of a decedent for any purpose specified in section 2108.03 of the Revised Code:
{¶ 56} “(1) The spouse;
{¶ 57} “(2) An adult son or daughter;
{¶ 58} “(3) Either parent;
{¶ 59} “(4) An adult brother or sister;
{¶ 60} “(5) A grandparent;
{¶ 61} “(6) A guardian of the person of the decedent at the time of the decedent’s death;
{¶ 62} “(7) Any other person authorized or under obligation to dispose of the body.”
{¶ 63} Thus, again in R.C. 2108.02(B), the General Assembly sets forth the right of family members to the disposition of a decedent’s body, giving family members the right to make anatomical gifts, and also the right to prevent an anatomical gift.
{¶ 64} All together, Ohio statutes grant next of kin important rights regarding the remains of a family member — the rights to possess, to control the disposition of, and to prevent the disposition of the remains.
State-Court Cases
{¶ 65} This is a case of first impression in this court, and the particulars of this matter are a first for all Ohio courts. However, a number of Ohio appellate decisions address in some manner the rights of next of kin to the remains of their deceased family members. Those cases establish that although a decedent’s body is not chattel belonging to the next of kin, the next of kin may bring a cause of action in their own right if the remains of the deceased are not treated in an appropriate manner.
{¶ 66} In Brownlee v. Pratt (1946), 77 Ohio App. 533, 537-538, 33 O.O. 356, 68 N.E.2d 798, the court recognized Ohio’s legal tradition supporting the proper repose of the dead.
{¶ 67} “The policy of the law to protect the dead and preserve the sanctity of the grave comes down to us from ancient times, having its more immediate origin in the ecclesiastical law. This salutary rule recognizes the tender sentiments *362uniformly found in the hearts of men, the natural desire that there be repose and reverence for the dead, and the sanctity of the sepulcher.”
{¶ 68} The common law’s attitude toward the proper treatment of the dead is not merely aspirational; instead, the law grants the next of kin a remedy when a deceased’s remains are mistreated. In Brownlee, the court found that the “plaintiffs right of burial of the dead was transgressed” when her stepmother placed the remains of her second husband in a burial vault containing the remains of the plaintiffs mother and father. Id. at 539, 33 O.O. 356, 68 N.E.2d 798.
{¶ 69} Although the court in Carney v. Knollwood Cemetery Assn. (8th Dist.1986), 33 Ohio App.3d 31, 514 N.E.2d 430, rejected “the theory that a surviving custodian has quasi-property rights in the body of the deceased,” id. at 37, 514 N.E.2d 430, it nonetheless recognized that the next of kin may properly bring an action for intentional infliction of emotional distress based upon the mistreatment of a deceased relative’s remains. In Carney, a decedent’s remains had been disinterred during the preparation for another burial and were then dumped on a refuse pile elsewhere in the cemetery. Id. at 31, 514 N.E.2d 430. The court quoted with approval the Wisconsin Supreme Court’s discussion of familial rights regarding the treatment of a decedent’s remains:
{¶ 70} “ ‘The law is clear in this state that the family of the deceased has a legally recognized right to entomb the remains of the deceased family member in their integrity and without mutilation. Thus the next of kin have a claim against one who wrongfully mutilates or otherwise disturbs the corpse.’” Carney, 33 Ohio App.3d at 36, 514 N.E.2d 430, quoting Scarpaci v. Milwaukee Cty. (1980), 96 Wis.2d 663, 672, 292 N.W.2d 816.
{¶ 71} In Biro v. Hartman Funeral Home (1995), 107 Ohio App.3d 508, 669 N.E.2d 65, the Eighth District again recognized a cause of action in tort for the desecration of remains.
{¶ 72} In Everman v. Davis (1989), 54 Ohio App.3d 119, 561 N.E.2d 547, the spouse of a woman killed in a car accident brought an action against the county coroner, challenging the coroner’s decision to perform an autopsy. The plaintiff alleged a violation of the Fourth Amendment right against unreasonable searches and seizures. Although the court found that the plaintiff had no cause of action against the coroner in that case, it made clear that a next of kin does have a possessory right in the remains of a loved one:
{¶ 73} “There is no issue in this case of the possessory right of a spouse or other appropriate member of the family to the body of the deceased person for the purpose of preparation, mourning and burial. This right is recognized by law and by the decisions. See R.C. 313.14. This is not to say that a corpse may not be temporarily held for investigation as to the true cause of death.” Everman, 54 Ohio App.3d at 122, 561 N.E.2d 547.
*363{¶ 74} Unlike in Everman, there is no quarrel here with the coroner’s right to perform an autopsy. The issue here is whether once the coroner has completed his duties, the next of kin can exercise their rights.
{¶ 75} The majority cites two ancient cases for the proposition that “a dead body is not property.” Majority opinion at ¶ 37. That is not the point. The point is whether next of kin have a right to a proper disposition of the body, and the cases cited by the majority actually support that idea. Both cases support the idea that next of kin have the right to the disposition of the body; in each case, the dispute is over which next of kin has that right.
{¶ 76} The majority first cites Hadsell v. Hadsell (Allen Cir.Ct.1893), 7 Ohio C.C. 196, 1893 WL 942, which involved a dispute between a stepmother and her deceased husband’s children as to the proper spot for their father’s burial. The Hadsell court wrote, “A dead body is not property. There are no next of kin to inherit it.” Id. at *3. In so writing, the court rejected the idea that the right to disposition of the body is determined by the order of inheritance. But the court also noted that society recognizes that “when a person dies he is to be accorded decent burial.” Id. The court found that the stepmother’s wish to bury the deceased in a location where the plot could be cared for and a monument erected should win out. The court decided the case in favor of the party most likely to visit and take care of the grave:
{¶ 77} “In the case under consideration, if we are to conclude from what we have observed, it would not be Milo or James [the decedent’s children] that would visit the grave of Almon E. Hadsell; no monument would they erect, no flowers would they strew upon the tomb. The monument to be erected is furnished by Mrs. Hadsell. The care to be bestowed upon the grave will be her care, and the flowers will be strewn by her hand.” Hadsell at *3.
{¶ 78} The second case cited by the majority, Hayhurst v. Hayhurst (Mar. 1926), Hamilton C.P. No. 199594, 4 Ohio Law Abs. 375, 1926 WL 2487, is a one-page common pleas court decision; it is another case involving a familial dispute regarding a place of burial. The Hayhurst court, too, found that “[t]here can be no property in a dead body and therefore a man cannot by will, dispose of same, and it does not become part of his estate.” The court was faced with competing family members’ ideas on the decedent’s burial, and found in making its decision that “[c]ases of this nature must be considered by a court of equity on their own merits having due regard to the wishes of the decedent and to the rights and feelings of those entitled to be heard by reason of relationship and association.” Again in Hayhurst, the court recognized the rights of family members.
{¶ 79} Other older cases establish that the right of the next of kin to dispose of their family member’s remains has been longstanding in Ohio. In 1886, this court acknowledged that “at common law there is a duty upon the husband to *364dispose of the body of his deceased wife by decent sepulture in a suitable place.” McClellan v. Filson (1886), 44 Ohio St. 184, 187, 5 N.E. 861.
{¶ 80} In Farley v. Carson (Hamilton Cty.Dist.Ct.1880), 8 Ohio Dec.Reprint 119,1880 WL 6831, the court found that the right and duty of a wife to dispose of the body of her deceased husband by decent sepulture “must, of necessity, include the right to possession of the body in the fitness for burial in which death leaves it; and the organization of courts of justice would be defective if in a proper case redress by damages might not be afforded for wilful violation of such right.” Farley, 1880 WL 6831 at *2.
{¶ 81} The plaintiff widow alleged that her decedent husband’s doctor had examined the decedent’s body after death and had made an incision to examine an abscess on the deceased’s liver. The court found that the allegations, if proved, would state a cause of action. The court found that the plaintiffs petition “alleged wilful desecration and mutilation, which words were comprehensive enough to include that disturbance of the decent fitness of the body for burial, which would constitute the violation of a right. This was a right in plaintiff as a widow, and entitled her to an application of the rule, that wilful infringement by one person of a right existing in another, imports damage.” Id.
{¶ 82}-The court ruled in the doctor’s favor on the facts, finding that the doctor’s action “was not a mutilation of the body, or dismemberment or removal of any part or organ, and for all the purposes of fit and proper burial the body was left without disfigurement.” Farley, 1880 WL 6831, at *3.
{¶ 83} All of the cited cases demonstrate that Ohio courts have long and consistently held that a deceased’s family members have a right protected by law in the proper disposition of the deceased’s body. It is a possessory light, and prevents others from damaging the body. There are no cases holding to the contrary.
Federal Cases
{¶ 84} Of course, the federal courts in the Sixth Circuit have already spoken on the issue we face today. In Brotherton v. Cleveland (C.A.6, 1991), 923 F.2d 477, the court held that under Ohio law the decedent’s wife’s interest in her husband’s corneas rose to the level of a legitimate claim of entitlement protected by the Due Process Clause. In Hainey v. Parrott (Sept. 28, 2005), S.D.Ohio No. 1:02-CV-733, 2005 WL 2397704, a case virtually identical to the case we face today, the district court held that the plaintiffs had a “cognizable constitutional property interest in them decedent’s body parts which the coroner’s office violated when it disposed of their decedents’ brains without prior notice.” Hainey at *6.
Dworken & Bernstein Company, L.P.A., and Patrick J. Perotti; and John H. Metz, for respondents. Donald W. White, Clermont County Prosecuting Attorney, and H. Elizabeth Mason, Assistant Prosecuting Attorney, for petitioners. Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., John R. Climaco, David M. Cuppage, Scott D. Simpkins, and Jennifer L. Gardner; and William D. Mason, Cuyahoga County Prosecuting Attorney, and David G. Lambert, Frederick W. Whatley, and Renee A. Bacchhus, Assistant Prosecuting Attorneys, for amici curiae Cuyahoga County Coroner and Cuyahoga County Board of Commissioners, in support of petitioners.Other Considerations
{¶ 85} In the end, this case is not about a random piece of human tissue. It is about the decedent’s brain. A brain is not a fingernail. The brain was the source of the deceased’s every thought, aspiration, dream, fear, laugh, memory, or emotion; it was the origin of every word spoken, every song sung, every joke told; everything a family member loved about the deceased could be traced back to it. If the next of kin have any right to the decedent’s body, the right must include the brain.
Conclusion
{¶ 86} Whatever the label, Ohio statutes and common law establish that Ohio recognizes a next of kin’s rights in the disposition of a deceased family member’s remains. Those rights, at least prior to R.C. 313.123, extend to the whole of the body and all of its parts.
{¶ 87} How the coroner could have met his obligation to respect the rights of family members is not before this court. But the burden would not have been heavy. It would have required, as suggested by the court in Hainey, simply some kind of notice, with options as to the ultimate disposition of the remaining body parts, to the next of kin, or a retention of the entire body until it could be returned to the family in its entirety.
{¶ 88} According to the majority, this case turns on the idea of property rights. But in truth, the point of the plaintiffs-respondents, and a point that has been recognized in Ohio law, is that a deceased’s remains are not mere property. They are on a higher plane. The law does not require respect or reverence for property, but the law does require that in the treatment of the dead. It is a requirement of the living that we all will ultimately and assuredly also be the beneficiary of. It should not be disposed of for the sake of convenience.
Patrick M. Fardal, for amicus curiae the National Association of Medical Examiners, in support of petitioners. Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, David G. Jennings, and Jennifer H. George, for amici curiae 65 Ohio counties, County Commissioners’ Association of Ohio, Buckeye State Sheriffs’ Association, Ohio Association of Chiefs of Police, Ohio Prosecuting Attorneys Association, and Ohio Society of Pathologists, in support of petitioners. Benesch, Friedlander, Copian & Aronoff, L.L.P., Mark D. Tucker, and C. David Paragas, for amici curiae Ohio State Coroners Association and Ohio State Medical Association, in support of petitioners. Nancy Hardin Rogers, Attorney General, and William P. Marshall, Solicitor General, for amicus curiae state of Ohio, in support of petitioners. Ron O’Brien, Franklin County Prosecuting Attorney, and Nick A. Soulas Jr., A. Paul Thies, and Patrick J. Piccininni, Assistant Prosecuting Attorneys, for amici curiae Franklin County Board of Commissioners and Franklin County Coroner, in support of petitioners. Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli; and John H. Metz, for amicus curiae Monreal Funeral Home, in support of respondents. Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli; and John H. Metz, for amici curiae the Catholic League and Brunner Funeral Homes, in support of respondents.