N.J. Admin. Code § 8:70-1.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 8:70-1.6 - Objections to autopsy on religious grounds

(a) When the medical examiner determines that an autopsy is a compelling public necessity, as defined by N.J.S.A. 52:17B-88.1a(1) through (4), but the circumstances of the death or the appearance or personal effects of the decedent indicate an obvious reason to believe that it would have been against the religious beliefs of the decedent to be autopsied, or a member of the decedent's immediate family, or, in the absence thereof, a friend of the deceased (as defined by N.J.S.A. 52:17B-88.1b), has objected to the autopsy, then the medical examiner shall proceed as follows:

1. If the medical examiner has obvious reason to believe that it is against the decedent's religious beliefs, and a member of the decedent's immediate family, or, in the absence thereof, a friend of the deceased, does not raise the religious objection, then the medical examiner shall request a judge of the Superior Court to appoint a representative to act on behalf of the decedent and shall postpone the autopsy for 48 hours.

2. If a member of the decedent's family, or, in the absence thereof, a friend of the deceased, objects because the procedure is contrary to the decedent's religious beliefs, the medical examiner shall postpone the autopsy for 48 hours.

3. After making the decision to postpone the autopsy, the medical examiner shall reevaluate all of the facts, seek any necessary additional information, and examine the body and perform any examinations that do not invade the body, including, but not limited to, external examinations, photography, X-rays, laser examination, computerized tomography, and magnetic resonance.

4. At the conclusion of any procedures set forth in (a)3 above, the medical examiner shall reconsider whether the autopsy is a compelling public necessity, as defined by N.J.S.A. 52:17B-88.1a(1) through (4). If the medical examiner concludes that the autopsy constitutes a compelling public necessity, he or she shall notify the objecting party, shall advise the party of the party's right to institute an action in the Superior Court to determine the propriety of the autopsy, and, if any court proceeding is pending, shall notify the Superior Court judge that the autopsy constitutes a compelling public necessity. If at the end of this evaluation the medical examiner concludes that the autopsy is not a compelling public necessity, pursuant to N.J.S.A. 52:17B-88.1a(1) through (4), and that there are sufficient facts to complete a competent death certificate and to satisfy the forensic needs of the investigation, he or she shall issue a death certificate and may release the body for burial.

5. Notwithstanding the provisions of this subsection, the medical examiner may make ex parte application to the judge to dispense with the waiting period if the medical examiner determines that any compelling necessity exists, as defined by N.J.S.A. 52:17B-88.1a(1), (2), (3) or (4), and concludes that the delay may prejudice the accuracy of the autopsy, and makes a good faith effort to notify any court-appointed representative or objecting family member or friend.

(b) The waiting period of 48 hours shall begin upon earliest notice by the objecting party or court-appointed party that an objection to autopsy exists based on the religious beliefs of the decedent, even prior to the transfer of documentary evidence to that effect. The progress of the proceedings shall be recorded on forms provided by the State Medical Examiner Office for that purpose. If at the end of 48 hours the objecting party has not provided to the medical examiner documentary evidence or a sworn statement or affidavit that the autopsy is contrary to the decedent's religious beliefs, or the objecting party has not instituted an action in the Superior Court to determine the propriety of the autopsy, or the court grants permission to conduct the autopsy, the medical examiner may proceed with the autopsy.

(c) In any other instance of compelling public necessity, pursuant to N.J.S.A. 52:17B-88.4, the medical examiner may apply to a Superior Court judge for permission to perform an autopsy. The medical examiner shall institute such action by an order to show cause, on notice to the member of decedent's immediate family, or, in the absence thereof, a friend, who objects to the autopsy as contrary to the decedent's religious beliefs. If no family member or friend objects, but there is an obvious reason to believe that the procedure is contrary to the decedent's religious beliefs, the medical examiner shall request the judge to appoint a representative to act on the decedent's behalf. The medical examiner may then seek an order authorizing the autopsy by filing an order to show cause, on notice to the court-appointed representative, if any.

(d) No final decision regarding whether a compelling public necessity exists, pursuant to N.J.S.A. 52:17B-88.1a, shall be made by the medical examiner unless a court proceeding is instituted or the objecting party provides documentary evidence or a sworn statement of the objection, including, but not limited to, an affidavit stating that an autopsy is contrary to the decedent's religious beliefs.

(e) If the court prohibits an autopsy that the medical examiner determined was a compelling public necessity, and the medical examiner cannot establish a cause of death by other means, the cause of death shall be certified as "Cause of death undetermined", and notations shall be made in the appropriate place on the death certificate (currently Part II, section 27) that the autopsy was prohibited by court order, and shall include the name of the judge and the date of the court order.

(f) If the court grants permission to perform the autopsy, the autopsy shall be performed immediately and shall be the least intrusive procedure that is consistent with the medical examiner's finding that a compelling public necessity exists. Under such circumstances, a complete external examination, any non-invasive procedures described in (a)3 above, and an internal examination of the body viscera in situ and the collection of minimal samples for toxicologic and microscopic testing shall be deemed acceptable procedure. Permission may be granted by the medical examiner to a designated representative of the family to attend the autopsy and perform any religious rites that do not conflict with the compelling public necessity.

N.J. Admin. Code § 8:70-1.6

New Rule, R.1989 d.110, effective 2/21/1989.
See: 20 N.J.R. 2856(b), 21 N.J.R. 447(a).