concurring in part and dissenting in part.
I respectfully dissent with respect to the admissibility of the test results of the fetus’ blood. This evidence, considered in Division 2 of the majority opinion, should have been suppressed. I concur in Division 1.
Defendant advances several arguments against admissibility: the autopsy and subsequent blood testing were not authorized by her and thus were subject to the requirement of a search warrant on Fourth Amendment and state constitutional grounds; the Georgia Death Investigation Act did not authorize the procedure because the stillborn fetus, which weighed two pounds eight ounces and was described in the medical report as nonviable, was not a “person” within the meaning of OCGA § 45-16-24 (a).
1. I assume, for the purposes of this case, but do not decide, that the Act embraced “fetus” within the term “person” for purposes of death investigation under the Act. However, this assumption is problematic because of two indicators that it does not cover fetuses.
First, the word “person” is used, and that generally is understood in the law not to include unborn children, except for certain specified purposes. Billingsley v. State, 183 Ga. App. 850 (1) (360 SE2d 451) (1987), lists some of these instances, which are in the civil rather than in the criminal realm. Billingsley held that an unborn child was not a “person” in the criminal law of Georgia and thus could not be the victim of vehicular homicide under OCGA § 40-6-395.
The Death Investigation Act is not a criminal statute per se, although one of its purposes, and the purpose for which .it was used here, is to aid in the enforcement of penal laws. It would not be sub*396ject to the rule that “criminal statutes must be strictly construed against the state and liberally in favor of human liberty.” Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979). The Act, however, was in derogation of the common law. “[A] statute ... in derogation of the common law . . . must be strictly construed.” Oviedo v. Connecticut Nat. Bank, 194 Ga. App. 626 (391 SE2d 417) (1990).
OCGA § 45-16-24 was rewritten in 1990, after the adoption of the criminal feticide statute in 1982. Ga. L. 1982, p. 2499, § 1; OCGA § 16-5-80. No accommodation was made for coverage of fetuses by indication of an intention to include them within the word “person” or by specific reference.
The purpose of such investigation would be to determine whether the crime of feticide had been committed. The feticide statute does not view the covered fetus, that is, a “quick” fetus, as a “person” but rather as an “unborn child.” Killing it is not homicide, which it would be if the fetus were regarded as a person. The authority for autopsy to aid in investigation of feticide should be coextensive with, and not broader than, the crime which purposes the autopsy. That is, if the criminal statute which gives rise to the need for autopsy does not regard the unborn child as a person, neither should the statute which enables the gathering of evidence to support its prosecution.
Secondly, the Act in three places indicates that the legislature contemplated that only the bodies of born persons would be subject to autopsy under it. In OCGA § 45-16-24 (a) (5), investigative autopsies are authorized when any person dies “In any suspicious or unusual manner, with particular attention to those persons 16 years of age and under.” Here would have been a natural place to include fetuses, because the young were being emphasized. Subsection (a) (6) covers any person who dies “After birth but before seven years of age if the death is unexpected or unexplained.” Here, it is exclusively the young who are being focused upon, and fetuses, or unborn children, are clearly excluded. The third place is in OCGA § 45-16-27.1, which again refers to the very young and covers only “any person after birth but before 7 years of age.” The words “after birth” must be taken as deliberately excluding “before birth,” for that is their plain meaning. “The courts must look to the purpose and intent of the legislature and construe law to implement that intent.” Wilson v. Board of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980).
2. Nevertheless, even if the rules of statutory construction allow a broadening of the word “person” in the Death Investigation Act to include “fetus” or even “quick fetus” (the latter being the only type subject to the crime of feticide), the search for the blood and its seizure violated the Fourth Amendment to the Constitution of the United States.
I note first that although appellant raised the state constitution *397below in a cursory way, she did not pursue this means of protection, did not separately address it, did not obtain a ruling on it, and has cited no cases or theory bottomed on any authority other than the Fourth Amendment. Thus we are constrained to bypass the state constitution as a source of relief. The statute on motions to suppress was not expressly invoked either. See OCGA § 17-5-30. Nevertheless, it controls the procedure, which puts the burden on the state to prove that the search and seizure was lawful. See subsection (b).
It is clear from the record that the autopsy in this case was undertaken to determine whether there was any evidence in or on the body of the fetus which would support a criminal charge that the mother’s boyfriend had caused its death by the violence he inflicted. She had told the hospital personnel of the attack on her, and the police had interviewed her about it. The autopsy report states that the “Reason for Performing An Examination” was that the fetus was “reportedly stillborn several days after the mother reports to have received a beating.” Note is made that additional details are contained in the police investigative report. The autopsy resulted in the medical examiner’s conclusion that “Cause of Death” was “Stillbirth” and that the “Manner of Death” was “Natural.” Thus the stated purpose of the autopsy was satisfied, and no evidence of trauma as a cause of death was uncovered. The authorization granted by the Death Investigation Act came to an end.
What, then, authorized the medical examiner to proceed further and submit blood to the State Crime Lab “for toxicology and possible typing” and liver “for toxicology?”2 There is no evidence, nor even any argument advanced, that the intrusion, extraction and testing were done for any authorized medical reason or to determine the cause of death.
The extraction of blood is a “search” and depends antecedently upon “seizure” within the meaning of the Fourth Amendment. Schmerber v. California, 384 U. S. 757, 767 (86 SC 1826, 16 LE2d 908) (1966). In reaching this conclusion, the court wrote: “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. . . . ‘[T]he security of one’s privacy against arbitrary intrusion by the police’ [is] ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ ” Schmerber, supra. “The ensuing chemical analysis of the [blood] sample to obtain physiological data is a further invasion of ... privacy interests.” Skinner v. R. Labor Executives’ Assn., 489 U. S. 602, 616 (109 SC 1402, 103 LE2d 639) (1989).
*398In this case there was a dead fetus, however, not a live person. The purpose of criminal investigation under OCGA § 45-16-24 having been satisfied, the further aspects of autopsy would have to be “consented to by the person assuming custody of the body for the purposes of burial.” OCGA § 45-16-28. In this case it would be the mother, appellant.
The mother was confronted with two choices with respect to the body, the day after the stillborn delivery. Her interest in it was acknowledged. She could either direct its release to a mortuary or she could instruct the hospital to “dispose of” it. On the Permit for Removal of Body, she expressly provided that the body was not to be a source of organs, and she answered “no” to the question: “Would you like an autopsy done on the deceased?”
This was a body which, unlike any other dead body, had been physically attached to her own and contained within her own until its delivery. Indeed, the state not only recognizes this but also depends upon it to support its charge that presence of the metabolites in the fetus’ body constitutes evidence of possession of the metabolites by the mother. In addition, unlike other physical objects in which appellant had a property interest, it could not be kept, and she had no third alternative as to its custody and control.
When she instructed the medical personnel at the hospital to dispose of the body, it could not have been reasonably understood that such authorization included releasing the body to the State Crime Lab for blood extraction and testing which could reveal whether she had possessed an illicit drug. Disposing of a fetus is one thing; conducting an autopsy and testing its blood is quite another. These consequences of the instruction offered and given would not reasonably have been understood by the average person. This is strengthened by the fact that she was given a choice about autopsy as well as about organ donation, and declined both. Having been given these choices, a reasonable person would expect that if other uses of the body were desired, she would have been given choices regarding them, too.
Nor did her instruction make the hospital her agent, clothed with authority to consent to the blood test portion of the autopsy for criminal investigative purposes, on some theory that the hospital stood in her place under OCGA § 45-16-28 since she chose no burial. This is especially true in light of her choice of no autopsy.
The dead body was “quasi property over which the [mother had] rights which the courts will protect.” Rivers v. Greenwood Cemetery, 194 Ga. 524, 525 (22 SE2d 134) (1942), quoted in Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 61 (335 SE2d 127) (1985). In this case, her rights were greater than would ordinarily exist in the body of a deceased relative, because she allegedly took into her own body and passed a substance through her own body into the searched body. She *399had an expectation of privacy which would not exist in the body of an independent person. She was not advised, when she instructed the hospital to dispose of the body, that this would open the door to invasions of that body and the withdrawal of its fluids in search of evidence of what she had had in her own body. Thus the testing required her consent (or some other authorization such as a search warrant) because it was only she who had a personal stake in its outcome. Cocaine metabolites in the stillborn’s blood would be, at best, circumstantial evidence of the mother’s possession of cocaine. Even where the substance is found in the urine of the person charged with possession, the evidence is only circumstantial. Green v. State, 260 Ga. 625 (1) (398 SE2d 360) (1990).
This case differs from Georgia Lions Eye Bank, supra, in the material difference that the statute challenged there authorized the medical action taken. Here the statute invoked by the state did not authorize the blood extraction and test, under the circumstances in which it was applied.
The mother’s consent in this case, and what was done pursuant thereto, differ from that in McCoy v. Ga. Baptist Hospital, 167 Ga. App. 495 (306 SE2d 746) (1983). There the parents of the stillborn child authorized the hospital “to dispose of this infant in any manner they deem advisable.” They also expressly “relinquish[ed] all claims on body of said infant.” Id. at 496. Appellant gave no such wholesale “clear and unambiguous” (in the words of McCoy) authorization but instead gave instructions to dispose of the body and to do so without autopsy, indicating the expectation that disposition would be accomplished and completed by the Hospital and it would be done without violating the body. The hospital had a legal duty “to handle the corpse . . . with utmost dignity.” Mayer v. Turner, 142 Ga. App. 63, 64 (234 SE2d 853) (1977).
McCoy also differs materially because it involved a claim for civil liability with respect to how the hospital treated the body in that it kept instead of properly disposing of it, whereas the instant case complains of criminal investigation conducted by an agency other than the one to which the mother gave custody for the express purpose of disposal.
Appellant, by signing the documents referred to above, did not contract away her right to require that, in the absence of a warrant based on probable cause, her consent be obtained before blood was extracted from the body of her stillborn child to determine if it contained an illegal drug for which she could be held criminally liable. Unlike garbage which is left for collection outside the curtilage of a house where it is open to the public, in which there is no Fourth Amendment protected expectation of privacy, see California v. Greenwood, 486 U. S. 35 (108 SC 1625, 100 LE2d 30) (1988), the *400body of a stillborn fetus which the mother entrusts to the hospital to dispose of carries with it the mother’s expectation of privacy in its being shielded from search without Death Investigation Act authorization, without probable cause, without exigent circumstances, and without her “ ‘freely and voluntarily given’ ” consent, “the product of an essentially free and unrestrained choice by [her].” Beasley v. State, 204 Ga. App. 214, 216 (1) (419 SE2d 92) (1992).
The choice appellant was given cannot reasonably be understood to have included the choice to allow the blood test or not. What might «be regarded as her “consent” for the hospital to dispose of the body did not contain within its scope the search and seizure conducted here; it expanded the parameters of the “consent” and extended it beyond what could reasonably have been understood. A consent is not necessarily wholesale. See Graves v. Beto, 424 F2d 524 (5th Cir. 1970) (blood test); State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). See also State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).
A subjective expectation of privacy is reasonable if it is one that society is prepared to recognize as objectively reasonable. Greenwood, supra at 39; Rakas v. Illinois, 439 U. S. 128, 143-144 (99 SC 421, 58 LE2d 387) (1978); Skinner, supra at 616-617. If a person has a right to consent or not to a blood test which might yield evidence of driving under the influence of alcohol or drugs, see OCGA § 40-5-55, then surely a mother’s property and privacy interests in the body of her stillborn fetus include the right to consent or not to a test of its blood which might yield evidence of her intake of an illicit drug, which bears much more severe consequences than a conviction for drunk driving. OCGA § 16-13-30.
I therefore conclude that the search and seizure in this case “has infringed an interest. . . which the Fourth Amendment was designed to protect.” Rakas, supra at 140. Its basic tenet is “to protect personal privacy and dignity against unwarranted intrusion by the state.” Winston v. Lee, 470 U. S. 753, 760 (II) (105 SC 1611, 84 LE2d 662) (1985). In Winston, the Court followed the case-by-case approach taken in Schmerber and held that it would violate Lee’s Fourth Amendment rights to compel surgery to remove a bullet which could be evidence of his commission of robbery.
In this case, the extraction and testing of the fetus’ blood were a violation of the right of the mother to be secure in her “person” and “effects, against unreasonable searches and seizures.” U. S. Const., Amend. IV. Because of the nature of the crime charged, i.e., possession of a controlled substance, and the state’s theory of how appellant possessed it, the blood testing was indirectly a testing of appellant’s body and directly a testing of a body in which she had a property interest. It would be illogical to conclude that the mother had no pri*401vacy or property interest in the stillborn fetus which encompassed the right to consent or not to a test of its blood, but that the results of that test could constitute evidence of the possession of the blood’s contents by her. The right of privacy encompasses confidentiality — “the individual interest in avoiding disclosure of personal matters” — as well as autonomy, “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 599-600 (97 SC 869, 51 LE2d 64) (1977).
Decided March 19, 1993 — Reconsideration denied April 2, 1993 Michael J. Classens, for appellant. R. Joseph Martin III, District Attorney, for appellee. Mary E. Wyckoff, Gerald R. Weber, Elizabeth J. Appley, Richard L. Greene, amici curiae.The “reasonableness” standard requires “ ‘a careful balancing of governmental and private interests.’ ” Soldal v. Cook County, 506 U. S.__(113 SC 538, 121 LE2d 450, 465) (1992). The government’s interest in extracting and testing the blood hás not even been articulated, except after the fact when what was found was cocaine metabolites. The interests of the appellant, on the other hand, were at least those identified above.
In Jackson v. State, 841 SW2d 38 (Tex. App. 1992), the conviction of defendant for possession of cocaine, which was reversed, was based on autopsy revelation that her stillborn infant’s liver contained cocaine.