The opinion
FERNANDEZ, Circuit Judge,
Dissenting:
I dissent because I do not believe that the asthenic legal interest in a decedent’s body, which California confers upon relatives and others, should be treated as a puissant giant for federal constitutional purposes.
To begin with, it has always been true in California that absent a statute “there is no property in a dead body.” Enos v. Snyder, 131 Cal. 68, 69 , 68 P. 170, 171 (1900). For that reason, no action for conversion will lie against someone who is said to have damaged or taken a part of the body. See Gray v. S. Pac. Co., 21 Cal.App.2d 240, 246 , 68 P.2d 1011, 1015 (1937). To the extent that any right exists, it is, in general, merely a right to possession. Id. That right exists solely “for the limited purpose of determining who shall have its custody for burial.” Sinai Temple v. Kaplan, 54 Cal.App.3d 1103, 1110 , 127 Cal.Rptr. 80, 85 (1976).
Of course, any civilized state desires that the bodies of its deceased members be disposed of in an appropriate way, on grounds of decency, consideration for others, and pragmatism. And it should be done with reasonable haste and without undue acrimony.
California’s statutory scheme reflects all of that. It decidedly does not confer a property right upon anyone. Assuming that a decedent has not made his own arrangements for disposal of his own earthly remains, 1 the state makes sure that somebody else will both do so and pay for it. To that end, California has provided that “[t]he right to control the disposition of the remains of a deceased person ... vests in, and the duty of disposition and the liability for the reasonable cost of disposition of the remains devolves upon,” a list of individuals. Cal. Health & Safety Code § 7100 (a). Thus, this so-called right is actually in the nature of a duty and expense designed to assure that the remains will not simply be left about, but will be quickly interred. And the state has created something like a table of intestate succession for the purpose of assuring that the right and duty land firmly on a defined group. First comes the person who has a power of attorney for healthcare. Cal. Health & Safety Code § 7100 (a)(1). Then comes the spouse. Id. at (a)(2). Then adult children, then parents, then next of kin. Id. at (a)(3)-(5). At the end is the public administrator, but he only gets the so-called right if there are “sufficient assets” to allow him to discharge his duty. Id. at (a)(6). This somewhat remarkable list surely shows just how peculiar it is to dub what we are dealing with a constitutionally protected property right. Is not it interesting that the holder of a power of attorney comes before the closest relatives, and equally interesting to see that the public administrator may wind up with the “right?” Or is it essentially a duty?
I rather think that it is really a duty rather than a right, and because a duty in one person must mean that a right is lodged in someone else, it seems pellucid that the state holds the right to demand that someone on the list bear the burden of disposing of the deceased’s remains; it then makes it possible for that person to *801 do so by also giving him the right to do so. 2 Again, that hardly looks like the kind of interest that United States Constitution was designed to protect.
This leads, I think, to a fairly simple proposition: when the state sees to it that the duty, with its necessarily associated right, devolves upon a person, it can constitutionally limit that duty and the right that goes with it. And that is precisely what California did when it declared that the coroner can, in the course of an autopsy, release corneal eye tissue if he “has no knowledge of objection to the removal and release of corneal tissue having been made by the decedent or any other person specified in Section 7151.5 of the Health and Safety Code.” Cal. Gov’t Code § 27491.47(a) (1983). 3 In that respect, it should be noted that the people referred to in § 7151.5 4 are not precisely the same as the people referred to in § 7100(a). The so-called right to consent, therefore, does not follow the so-called duty, and right, to see to interment. This, again, demonstrates just how asthenic the right conferred by § 7100(a) really is.
Nobody who has had the misfortune of having his loved ones die can fail to be moved by the prospect that somebody else will treat the loved one’s former earthly vessel with disrespect. That feeling does not, however, demonstrate that California has conferred a constitutionally protected property right upon family members. In fact, it has not; it has merely given them enough of a right to allow them to fulfill their duty, and it has limited that in a number of ways. One of. those ways has to do with corneal tissue. As to that, the duty may not devolve, and concomitantly the right will be neither necessary nor constitutionally protected.
Thus, I respectfully dissent.
. See Cal. Health & Safety Code § 7100.1 .
. The correlative duty is for others not to interfere with this subsidiary right to inter the decedent and incur an expense.
. This section has been revised and now refers to § 7151.
. The list has been somewhat revised, and is now in Health and Safety Code § 7151(a).