No. 97-0271-CV-W-6


    Plaintiff Herman L. Mansaw, Sr., brought this action against defendants Midwest Organ Bank ("Midwest Organ") and Truman Medical Center West ("TMC") alleging a state law claim and a claim under 42 U.S.C. §1983. By order of the court dated July 29, 1997, the defendants were invited to brief the merits of plaintiff's §1983 claim. The defendants accepted this invitation, filing separate motions for judgment on the pleadings on September 10, 1997 (TMC), and October 17, 1997 (Midwest Organ). These motions attack the sufficiency of plaintiff's §1983 claim under Federal Rule of Civil Procedure 12(h). Plaintiff filed suggestions in opposition to these motions on October 30, 1997, and defendants filed their reply's on November 4, 1997 (Midwest Organ), and November 6, 1997 (TMC). On December 23, 1997, the court requested supplemental briefing by the parties on several issues of particular concern to the court that were not completely addressed in the parties' briefing. The supplemental briefing is complete and the court now takes up and rules on defendants' motions.

I. Factual Background.

    Plaintiff alleges that on December 4, 1993, Jason, his fifteen year old son, sustained a gunshot wound to the head and was taken to TMC for medical treatment. Complaint at 4, ¶3. After Jason was declared brain dead, Jason's mother signed a written consent allowing TMC and Midwest to harvest Jason's organs and tissue. Complaint at 4-5, ¶3. After receiving consent from Jason's mother, but before disconnecting life support, defendants harvested some of Jason's organs and tissue. Complaint at 5-6, ¶6. After the harvesting was complete, the life supports were removed and Jason's body died. Id.

    Plaintiff was not married to Jason's mother at the time of Jason's death. Complaint at 3, ¶¶1, 2. Plaintiff and Jason's mother, however, shared joint custody of Jason. Complaint at 3, ¶2. Plaintiff was not asked for his consent and "would not have given his consent if he had been asked." Complaint at 5, ¶3. Plaintiff asserts that the harvesting of his son's body organs and the shock of seeing his son's disfigured body caused him mental anguish, grief, anxiety and depression. Complaint at 6, ¶1. Plaintiff asserts that the defendants' actions violated the plaintiff's rights under the due process and equal protection clauses of the fourteenth amendment. Complaint at 6, ¶2. He seeks relief for these alleged constitutional violations through the procedural vehicle of §1983.

II. Analysis.

    "To state a cognizable claim under §1983, a plaintiff's complaint must allege that the conduct of a defendant acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Walker v. Reed, 104 F.3d 156, 157 (8th Cir. 1997).

A. Acting Under Color of State Law.

    Both defendants argue first that dismissal is appropriate because they were not "acting under color of state law." Having reviewed Truman Medical Center, Inc. v. National Labor Relations Board, 641 F.2d 570 (8th Cir. 1981), and Stacy v. Truman Medical Center, Inc., 836 S.W.2d 911 (Mo. 1992), the court accepts TMC's claim that it is not a public entity, governmental entity or political subdivision of the State of Missouri.1 It would appear that both TMC and Midwest Organ are private corporations. Even the actions of a private corporation, however, can be considered as made "under the color of state law" if its actions are "fairly attributable to the state." Lugar v. Edmonson Oil Co., 457 U.S. 922, 936 (1982). In other words, "[t]o act under color of state law . . . does not require . . . that the defendant be an officer of the state. Private acts or conduct may incur liability under §1983 if the individual is a "willful participant in joint action with the State or its agents." Mildfelt v. Circuit Court of Jackson Cty, 827 F.2d 343, 345-46 (8th Cir. 1987) (internal quotation omitted); See also Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993). "The question . . . is whether there is a sufficiently close nexus between the state and the challenged action . . . so that the action . . . may be fairly treated as that of the State itself." Mildfelt, 827 F.2d at 346 (internal quotations omitted). "Private action is not converted into state action unless the state, by its law, has compelled the act; mere acquiescence is not enough." Reinhart v. City of Brookings, 84 F.3d 1071, 1073 (8th Cir. 1996), citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 165 (1978).

    Like many other states, Missouri has enacted the Uniform Anatomical Gift Act ("UAGA"). See Mo. Rev. Star. §§ 194.210-194.307. Missouri's UAGA requires that the chief executive officer of each hospital in Missouri appoint "one or more trained persons to request anatomical gifts." Mo. Rev. Stat. §194.233.1. When a patient suitable for organ or tissue donation is available, Missouri law mandates that the appointed representative "request consent to a donation from the persons authorized to give consent as specified in [Mo. Rev. Stat. §194.220.2]." Mo. Rev. Stat. § At the time of Jason's death, Mo. Rev. Stat. §194.220 provided, in relevant part:

2. Any of the following persons, in 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 give all or any part of the decedent's body for any purpose specified in section 194.230:

(1) The spouse,

(2) An adult son or daughter,

(3) Either parent,

(4) An adult brother or sister,

(5) A guardian of the person of the decedent at the time of his death

    . . . .

3. If the donee [hospital] has actual notice of contrary indications by the decedent or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift. The persons authorized by subsection 2 of this section may make the gift after or immediately before death.

Mo. Rev. Stat. §194.220 (emphasis added). Plaintiff's complaint asserts that TMC secured the consent of Jason's mother; thus, the statutory requirement that "either parent" consent was satisfied.3 If consent is given under Mo. Rev. Stat. §194.220, Mo. Rev. Stat. §194.233.6 requires that "the hospital shall then notify an organ or tissue procurement organization and cooperate in the procurement of the anatomical gift or gifts pursuant to applicable provisions of [the UAGA]." (emphasis added).

    From the above, it is clear that the State of Missouri compelled TMC to participate in the harvesting of Jason's organs.4 The court therefore assumes for present purposes that TMC was acting under the color of state law when Jason's organs were harvested.

    Plaintiff has not alleged in his complaint that Midwest Organ was acting under color of state law. See Mershon, 994 F.2d at 451 (to survive a motion to dismiss plaintiff must have asserted a meeting of the minds between a state actor and private party). Based on the allegations in plaintiff's complaint, it would seem that, at most, Midwest Organ would be classified as a "donee" under the UAGA. See Mo. Rev. Stat. §194.230.5 Under Mo. Rev. Stat. §194.270, "[t]he donee may accept or reject the gift." (emphasis added). Plaintiff's failure to allege state action by Midwest Organ in his complaint (or set forth a plausible scenario in briefing to this court as to how state action could be found) combined with power vested in a donee under Mo. Rev. Stat §194.270 to either accept or reject a gift at its sole discretion (which decision could not be fairly attributable to the state), leads the court to conclude that Midwest Organ was not acting under color of state law. But see Brotherton v. Cleveland, 968 F.2d 1214, 1992 WL 151286 (6th Cir. 1992) (unpublished opinion) (holding that eye bank was state actor). Accordingly, Midwest Organ's motion for judgment on pleadings on plaintiff's §1983 claim will be granted.

B. Deprivation of Property Interest.

    Defendants next argue that dismissal is appropriate because even if they were acting under the color of state law, plaintiff had no constitutionally protected property interest in Jason's body.6 As previously indicated, plaintiff must allege that he was deprived of a right secured by the Constitution. See Walker, 104 F.3d at 157. Plaintiff's complaint asserts that he was denied due process and equal protection. Plaintiff does not provide a basis for an equal protection claim in his complaint and does not, in numerous briefs filed with this court, attempt to defend it. The court can discern no basis for an equal protection claim in the circumstances of this case. Accordingly, for these reasons, defendants' motion for judgment on the pleadings on plaintiff's equal protection claim will be granted.

    Plaintiff's due process claim presents a more difficult question. The fourteenth amendment states, in pertinent part, "nor shall any state deprive any person of life, liberty, or property without due process of law . . .." Plaintiff's due process claim is obviously not rooted in a deprivation of life or personal liberty (excepted in an attenuated emotional sense that will be further noted). Whether plaintiff (and his ex-wife) had a property interest in Jason's dead body is determined by examining Missouri law. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978). Defendants argue strenuously that Missouri law does not recognize a property interest in dead bodies. Defendants point out that "Missouri courts have abandoned the "early fiction that the cause of action [for interference with the right of sepulchre] rested on the infringement of a quasi property right of the nearest kin to the body.'" Lanigan v. Snowden, 938 S.W.2d 330, 332 (Mo.Ct.App. 1997) (quoting Galvin v. McGilley Memorial Chapels, 746 S.W.2d 588, 591 (Mo.Ct.App. 1987)).7

    Ohio courts have held that next-of-kin do not have even a quasi-property interest in a relative's dead body. See, e.g., Carney v. Knollwood Cemetery Ass'n, 514 N.E.2d 430, 434-35 (Ohio Ct.App. 1986) (rejecting theory that relative have a quasi-property right in the body of the deceased); Everman v. Davis, 561 N.E.2d 547 (Ohio Ct.App. 1989) (possessory right in body for burial does not constitute a property right in the body of another). Nevertheless, in 1991, the Sixth Circuit Court of Appeals, by a vote of 2 to 1, held in Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991), that, despite this Ohio case law, a relative of a deceased had a constitutionally protected property right in the deceased's body.8 The Sixth Circuit recognized that "property" consists of a "bundle of rights." See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982). This "bundle" includes the right to possess, to use, to exclude, to profit, and to dispose. Brotherton, 923 F.2d at 481. The Sixth Circuit concluded that under Ohio law the relative of deceased has enough sticks in the bundle of rights, whether the sticks are called property rights or not, to rise to the level of a "legitimate claim of entitlement" protected by the due process clause of the constitution. Id. at 481-82.9 Specifically, the court held that under Ohio law plaintiff had right to possess the body for burial, the right to control the disposal of the body and a right to maintain a claim for disturbance of the body. Id. at 482. The court concluded that these rights, "[a]lthough extremely regulated, . . . form a substantial interest in the dead body, regardless of Ohio's classification of that interest." Id.

    Strongly disagreeing with the majority's conclusion, the dissent argued that the "bundle of rights" in the plaintiff was "virtually nonexistent." Id. at 484. Among other points, the dissent argued that "Ohio law has made it very clear that there is no property right in a dead person's body," and that "[c]ourts in other states which have examined this question have reached a similar conclusion." Id. at 483. The dissent also alluded to the Restatement (Second) of Torts §868 comment a (1979), which states that the right of control over a dead body does "not fit well into the category of property because a body cannot ordinarily be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation."

    Defendants urge this court to adopt the position of the dissent in Brotherton and the other, albeit state, courts examining this question. See, e.g., State v. Powell, 497 So.2d 1188, 1191 (Fla. 1986) (upholding as constitutional a presumed consent statute that authorized a medical examiner to take a decedent's corneas because the decedent's relatives had no property right in the remains, but only the limited right of possession for burial); Georgia Lions Eye Bank, Inc., v. Lavant, 335 S.E.2d 127, 128 (Ga. 1985) (denying due process challenge to presumed consent statute because the relative's rights in the decedent's body did not rise to constitutional dimensions); Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 277 (Mich. Ct. App. 1984) ("While there is no property right in the next of kin to a dead body," the right to possess for burial does exist, but this right does not reach constitutional dimension).10 Having reviewed these state court decisions, the Brotherton opinion and the line of Sixth Circuit cases following Brotherton, the court finds the majority opinion in Brotherton persuasive and adopts its analysis.

    The sole question before the court, therefore, is whether Missouri law is substantially different from Ohio law. The court concludes that it is not. As in Ohio, in Missouri the next of kin have the right to possess the body for burial; see, e.g., Lanigan, 938 S.W.2d at 331-332, the right to control the disposal of the body, see, e.g., Mo. Rev. Stat. §194.220, and a right to maintain a claim for disturbance of the body, see, e.g., Galvin, 746 S.W.2d at 590.11 The court concludes that plaintiff and his ex-wife both had a property interest in Jason's dead body.

C. Adequacy Of State Remedies

    Defendants next argue that plaintiff's state remedies are adequate and that his §1983 claim must therefore fail. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533 (1984). Defendants correctly point out that deprivations of rights protected by the due process clause are not recoverable under §1983 if the state provides adequate post-deprivation tort remedies. Hudson, 468 U.S. at 532-33. This bar to a §1983 claim generally applies, however, where the act complained of is random, or unauthorized, or where the act was taken pursuant to an informal policy. Hudson, 468 U.S. at 532-33. Here, however, the court interprets plaintiff's complaint as essentially attacking the constitutionality of the Missouri statute permitting organ donation on the consent of only one parent in the absence of knowledge of the non-consent of the other parent. See Mo. Rev. Stat. §194.220. This statute represents the established policy and procedure of the State of Missouri, not a random and unauthorized occurrence, and one can infer with little difficulty that hospitals across the State have adopted and follow this established policy and procedure. Accordingly, the cases relied on by defendants, Hinkle v. City of Clarksburg, 81 F.3d 416, 423 n. 5 (4th Cir. 1996); Arnaud v. Odom, 870 F.2d 304, 309 (5th Cir. 1989); and Fuller v. Marx, 724 F.2d 717 (8th Cir. 1984), are inapposite.

    Although not briefed by defendants, the Supreme Court has recognized another exception to the predeprivation notice requirement where "either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process." Parratt v. Taylor, 451 U.S. 527, 539 (1980) (synthesizing Supreme Court precedent) (footnote omitted). The need for quick action in the situation contemplated by the statute at issue here is obvious. It would be prohibitively costly in lost organ transplants (and, consequently, human lives) to affirmatively undertake lengthy searches for interested parties (as defined by statute) who may have a personal, moral or religious objection to the organ harvesting. So long as the objections (if any) of these people are not made known to the hospital (or, even if known, are further down on the prioritized list of interested people), the hospitals must be permitted to proceed on the approval of those present who are authorized by the statute to approve the harvesting.

    This exception, however, can not be applied in this case, because, notwithstanding plaintiff's complaint, which purports to bring a state common law tort claim(s), the court is unable to conclude that the Missouri legislature intended to leave open the possibility of suit against a hospital by absent, non-consenting interested parties. In addition, the court's conclusion that plaintiff challenges not only the statutorily mandated result in his case but also the constitutionality of the statute itself makes reliance on this exception to the cognizability of a §1983 action inappropriate. Accordingly, the fact that situational exigencies are embodied in Missouri's UAGA and that these exigencies may excuse prior notice to all interested parties does not bring it within the "quick action" exception discussed in Parratt because it is unlikely that the Missouri legislature intended to leave open the possibility of suit against hospitals for actions taken in compliance with Mo. Rev. Stat. §194.220.

D. Respondeat Superior Liability

    Both defendants argue that plaintiff's §1983 claim must be dismissed because plaintiff's claim is based solely on the theory of respondeat superior. In light of the nature of plaintiff's allegations as interpreted by the court--that plaintiff challenges the constitutionality of Mo. Rev. Stat. §194.220--this point will be denied. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 694 (1978) ("When execution of the government's policy or custom, whether by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury[,] . . . the government as an entity is responsible . . . under §1983.").

E. Qualified Immunity

    In its December 23, 1997, order, the court asked the parties to brief, among other issues, the applicability of qualified immunity. In its response, Midwest Organ states that "[a]s pled by the plaintiff, qualified immunity would not apply in this case" because plaintiff's action is against an entity. As further stated by Midwest Organ, "[a]n entity may be independently liable to plaintiff under §1983 if it has an unconstitutional policy that has affected a plaintiff."

    After conceding that most courts have held that an entity may not generally assert qualified immunity as a defense to a §1983 action (citing Owen v. City of Independence, 445 U.S. 622 (1980)), defendant TMC relies on Patterson v. Von Reisen, 999 F.2d 1235 (8th Cir. 1993) and Frazier v. Bailey, 957 F.2d 920, 931-32 (1st Cir. 1992), in support of an argument that qualified immunity can be extended to cover it (and presumably Midwest Organ) in this case. Frazier and Patterson are, however, distinguishable. In Frazier, the First Circuit Court of Appeals held that because "it can be assumed that the only possible liability of the two agencies would derive from the culpability of their respective employees," and the employees were entitled to qualified immunity as a matter of law, there was "no basis for recovery against the agencies." Id. at 931-32. Here, however, there is an independent basis for recovery against the "agencies," that is, a potentially unconstitutional policy.

    Patterson is also distinguishable. Most fundamentally, it involved the doctrine of absolute immunity. Moreover, with little discussion, the Patterson court, in a footnote, concluded that because a prosecutor was entitled to absolute immunity for his action in not revealing mistakes made at trial, the plaintiff could not recover damages from the county, even if the prosecutor was acting pursuant to a county policy in not disclosing his mistakes. Id. at 1238 n. 2. It would appear that this language and conclusion from Patterson has never again been cited or relied upon. In addition, it is possible that the Patterson court based its footnote discussion on its earlier conclusion in the text that the Supreme Court had "created no requirement that prosecutors reveal their trial mistakes to maintain their absolute immunity." Id. at 1238. In other words, even if the county's policy was for its prosecutors not to disclose their trial mistakes, the policy did not provide a basis for lifting the shield of absolute immunity because the policy was not unconstitutional. Cf. White v. Moulder, 30 F.3d 80 (8th Cir. 1994); McCuen v. Polk County, Iowa, 893 F.2d 172 (8th Cir. 1990). The court concludes that qualified immunity does not provide a basis for dismissing plaintiff's §1983 claim.

F. Liability For Negligent Acts.

    Plaintiff's complaint alleges that the acts of defendants' employees "negligently or otherwise" caused plaintiff harm and deprived him of due process. Defendants both assert that plaintiff's complaint must be dismissed because there can be no §1983 liability for negligent, or even grossly negligent, acts. See Walker v. Reed, 104 F.3d 156, 158 (8th Cir. 1997); Myers v. Morris, 810 F.2d 1437, 1468 (8th Cir. 1987). While this may be true, defendants' argument is misplaced. Defendants allegedly intentionally removed plaintiff's son's organs in violation of plaintiff's due process rights. Although the action may have been taken in good faith and without even negligence, it was still an intentional act.12

G. The Constitutionality of Mo. Rev. Stat. §194.220.

    The court will now turn its attention to the ultimate issue in this case, whether Mo. Rev. Stat. §194.220, which, among other things, permits a hospital to proceed with organ harvesting after securing the consent of only one parent of a deceased minor so long as the hospital does not know that the other minor's parent objects to harvesting, is constitutionally defective. Plaintiff's attack on this provision appears to be one of first impression in the country. After considerable research, the court concludes that plaintiff's claim must fail.

    Due process does not require notice and a hearing "in every conceivable case of government impairment of private interest." Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 856, 894 (1961). Rather, "what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action" Id. at 895.13 Decisions of the Supreme Court make it clear that ""[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances," id., but is instead "flexible[,] and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

    Before turning to an analysis of the respective factors, the court notes as a preliminary matter that the mere fact that it has concluded, see supra, that plaintiff's "property interest" in his son's body has crossed the constitutionally "de minimis" threshold, see Fuentes v. Shevin, 407 U.S. 67, 90 n. 21 (1972), does not mean that the same level of constitutional protection is afforded his claim as may be afforded other, more compelling constitutional interests. Instead, the court can consider the barely more than "de minimis" nature of plaintiff's "property interest" (see infra) in determining the process due plaintiff. See, e.g., id. ("The relative weight of liberty or property interests is relevant, of course, to the form of notice and hearing required by due process.") .

    With these principles in mind, the court will address the various interests involved. Sadly, more than twenty-two hundred times a year, our society is made acutely aware of the chronic shortage of suitable organ donors. See Daniel J. Crothers and Catherine G. Uglem, A Proposal For A Presumed Consent Organ Donation Policy In North Dakota, 68 N.D.L. Rev. 637, 638 (1992) (in 1990, 2,206 people on waiting lists for organs died waiting). The pressure on the system is magnified by the harsh reality that not every donated organ is suitable for every donee. Combine these problems with the limited time available between harvesting and surgical implantation and the unfortunate result is that across the country thousands of people languish for years on waiting lists for one organ or another. Id. at 637 (more than 27,391 people were on national lists as of June 24, 1992). Like every other state in the Union, the Missouri Legislature, voicing the concerns of these people and expressing a general societal belief that all that can be done should be done to help the living,14 decided to aggressively combat the problem by enacting a slightly modified version of the 1968 version of the Uniform Anatomical Gift Act. Hence, the governmental function involved here is of major significance not only to those currently on waiting lists, but to all persons who may at any time find themselves or a close family member in desperate need of an organ.

    Plaintiff's interest, on the other hand, is far less compelling. As previously discussed, both parents have a constitutionally protected "property interest" in a minor child's body. See Brotherton, supra. It is important that we deal here with property rights,15 and not rights deemed more constitutionally "essential." Stanley v. Illinois, 405 U.S. 645, 651 (1972). When compared with the rights of privacy, of liberty, to conceive, or to raise one's children, property rights -- particularly the extremely minimal property right presented here -- may fairly be described as a low right on the constitutional totem pole.16 Couple this rather minimal interest with the exigent circumstances surrounding and accompanying the organ donation decision and the State's legitimate and compelling interest in providing for and securing a future for the living, and it becomes highly doubtful that much process is due plaintiff. Further diminishment of plaintiff's rights occurs because his interest is shared equally with the minor's other parent (especially in cases involving married parents or divorced parents sharing joint custody of the minor). This interest may be described as "joint," which implies a certain amount of similarity of interests and wishes.

    Whatever constitutional protection plaintiff may be entitled to, the court concludes that Missouri's UAGA provides it. The General Assembly, not unaware that there may be familial objections to organ harvesting, attempted to strike a balance. Section 194.220 represents the Missouri legislature's attempt to implement its pro-organ transplant policy while, at the same time, balancing the legitimate interests of persons who may be interested in protecting the bodies of dead relatives. This legislative balancing act prioritizes the potentially interested persons into various classes and requires that the hospital secure the consent of a member belonging to the first applicable and available class.17 Further balancing is accomplished by barring organ harvesting where the hospital learns that either the decedent objected or a member of the first applicable and available class objects.

    The Legislature, however, was unwilling to extend veto power to persons belonging to members of classes lower than that class first available. In a similar vein, the Legislature declined to require that all members of the first applicable and available class consent. For example, in the case of a deceased minor, the first applicable class is the minor's parents. The statute provides that "either parent may consent" and that the organs may be harvested absent knowledge of contrary wishes of the other parent. The statute essentially establishes a rebuttable presumption that one parent's decision expresses the wishes of both parents (or, in other contexts, that one member of the class speaks for the other, silent members of the class).

    It is a presumption born of necessity. Affording the hospital the authority to act on one parent's (or one class member's) consent arguably represents the only feasible, practical alternative. As previously noted, medical technology does not permit us to keep organs and tissue alive indefinitely. During the narrow window of time and opportunity, decisions must be made rapidly and without delay. Necessarily excluded from the decision-making equation are those applicable class members not present (or not reachable by other members of the class who wish to make them aware of the situation). In these exigent circumstances, where time is of the essence, the Missouri legislature was doubtless constitutionally entitled to create a rebuttable presumption that one joint owner of a minor's body could speak for the other joint owner. Therefore, whatever "property interest" plaintiff has in his son's body may reasonably be disregarded, at least when the other joint property owner has consented. Plaintiff's interest must yield to the greater rights of the State -- and our society -- in carrying out its public policy, when the co-owner has consented and the hospital is unaware of plaintiff's objections.18

    As Supreme Court jurisprudence in the abortion area recognizes notice to interested persons -- in that case husbands -- armed with constitutionally protectible interests may be constitutionally eliminated when other, more compelling interests -- in that case a wife's liberty interest -- are involved. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 887-89 (1992). In sum, due process is not offended by excluding a non-present class member from the decision-making equation and creating a rebuttable presumption that one class member may speak for the others. By appointing class member(s) present at the time a decision must be made as representative(s) of those class members not present, plaintiff (and other non-present class members) was afforded all the process he was due.

    It is true that at common law, co-owners of property are not considered one another's agents and can not generally bind each other with their actions with respect to the property. See, e.g., Williford v. White, 584 S.W.2d 637, 639 (Mo. Ct. App. 1979). Similarly, spouses are not deemed at common law to be one another's agent merely by virtue of the marital relationship. See, e.g., Missouri Farmers Ass'n, Inc. v. Busse, 767 S.W.2d 108, 110 (Mo. Ct. App. 1989). The court's conclusion confirms, however, that the Legislature can, in appropriate circumstances, statutorily modify the common law without offending constitutional dictates. For example, in a somewhat analogous situation involving joint bank accounts, banks are statutorily protected against suit from disgruntled joint account holders who, unbeknownst to the bank, object to a withdrawal of all or some of the account funds by a co-owner of the account through what may be considered a similar, statutory presumption of acquiescence, agreement and consent. See Mo. Rev. Stat. §362.470 (banks and trust companies); 368.174 (savings and loan associations). See also Peters v. Carr, 654 S.W.2d 317, 322 (Mo. Ct. App. 1983). Only after a bank has knowledge of the objections of the other joint account holder may liability attach to a subsequent failure to prevent a withdrawal.

    Accordingly, for the reasons stated, the court concludes that the statute is constitutionally sound as a regulation of joint property rights and cannot be indirectly attacked successfully in this case. Plaintiff's §1983 claim will therefore be dismissed. In its Order of July 29, 1997, the court concluded that diversity of citizenship did not exist in this action. See July 29, 1997, Order at 3. Since the court has, in analyzing the constitutional issue, incidentally determined that the statute protects defendants from common law claims, all his claims are deemed without legal merits.

    Accordingly, for the reasons set forth above, it is hereby

    ORDERED that defendant Midwest Organ Bank's motion for judgment on the pleadings (Doc. No. 33) is granted. It is further

    ORDERED that defendant Truman Medical Center's motion for judgment on the pleadings (Doc. No. 28) is granted.

            /s/ HOWARD F. SACHS

Dated: July 8, 1998.


    1 The court notes agreement with TMC's argument that as a general rule, a private hospital's actions do not constitute state action and therefore are not subject to scrutiny by the courts for compliance with due process. See, e.g., Pariser v. Christian Health Care Systems, Inc., 816 F.2d 1248 (8th Cir. 1987); Tunca v. Lutheran General Hosp., 844 F.2d 411 (7th Cir. 1988); Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023 (4th Cir. 1982); Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3d Cir. 1978).

    2 The Prefatory Note to the 1987 version of the Uniform Anatomical Gift Act makes clear that Missouri is not alone in this, noting that "a majority of states have enacted a variety of "required request' laws that require hospital administrators to discuss with next of kin the option of donating, or requesting donation of, the organs of a decedent."

    3 There is no allegation in the complaint (or in the briefing by either party), that TMC had knowledge of Jason's father's position respecting the harvesting of Jason's organs.

    4 It is not clear whether TMC was a "donee" under the Missouri statutes. See Mo. Rev. Stat. §§194.230 - 194.240, 194.270.

    5 It is possible, however, that Midwest Organ would not be the "donee" under the UAGA, but rather merely a later handler of the organ. The court need not reach this question.

    6 Both TMC and Midwest Organ raise the arguments that the court addresses in §§B through F of this opinion. Although the court has previously held that Midwest Organ's motion is well-founded based on a failure of plaintiff to allege or establish that Midwest Organ acted under color of state law, the court will continue to refer to and address the arguments of both defendants.

    7 Instead, the "cause of action's basis is the mental anguish experienced by the person claiming the right of sepulchre." Id.

    8 In Brotherton, the widow and children of a deceased brought a §1983 action arising out of a county coroner's harvesting of the decedent's corneas without the widow's or childrens' consent. The widow had made it clear to the hospital that she did not wish to have her husband's corneas removed, and the hospital made note of this objection on its records. The hospital, however, made no attempt to inform the coroner's office of the widow's objection. Pursuant to the custom and policy of the county, the coroner, who lacked independent knowledge of the widow's objection, failed to review the hospital records that indicated the widow's decision before removing the corneas.

    9 The court concluded that it was irrelevant whether the Ohio supreme Court would classify the relative's interest as property, quasi-property or not property because "[a]lthough 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' . . . is determined by federal law." Id. at 481-82 (citing Memphis Light, 436 U.S. at 9).

    10 However, the Sixth Circuit Court of Appeals, following Brotherton, subsequently ruled in Whaley v. County of Tuscola, 58 F.3d 1111, 1115-16 (6th Cir. 1995), that the "property" interests recognized under Michigan law were constitutionally protectable.

    11 Defendants argue that because Missouri heavily regulates dead bodies, the court should conclude that no constitutionally protectable property interest exists. This argument was raised and rejected by the majority in Brotherton.

    12 The court does not address, because neither TMC nor Midwest Organ has raised it and because of the court's conclusion supra on defendants' negligence argument, the question of whether Mo. Rev. Stat. §194.270.3 provides a basis for ruling in their favor. That section provides:

A person who acts without negligence and in good faith in accord with the terms of this act or with the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for this act.

    Mo. Rev. Stat. §194.270.3. The court's impression is that it would be improper to permit §294.270.3 to operate as a bar to this action because plaintiff challenges the constitutionality of the one-parent consent statute.

    13 As explained in the seminal case of Mathews v. Eldridge, 424 U.S. 319 (1976), "due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335. The second factor -- risk of an erroneous deprivation -- is swallowed by the third factor -- Government's interest -- because of the exigencies presented in the organ transplant context. In other words, it is, in the situation presented here, a constitutionally acceptable risk weighing in favor of neither side. Accordingly, the second Mathews factor will not be discussed further.

    14 For example, a 1985 Gallup Poll reported that 75% of Americans approved of the concept of organ donation. See Prefatory Note, Uniform Anatomical Gift Act (1987). This does not mean, obviously, that the opinions of persons with scruples about the practice may be brushed aside.

    15 After extensive research, the court concludes that the only constitutionally protectible interest that a person may have in a deceased relative's body should be characterized as a property interest. The court concludes that, although there are in reality strong sentimental interests on occasion, it would be inappropriate to recognize that a relative of a deceased's body. Therefore, any other constitutionally protectible liberty interest that a parent may have in a minor child dies with the child.

    16 For example, as recognized by the United States Supreme Court in a series of cases dealing with father's rights in adoption proceedings, due process may require prior notice and hearing if a father has had significant emotional, physical, or financial involvement with his child. See Stanley v. Illinois, 405 U.S. 645 (1973) (holding that due process was violated by statutory destruction of unwed father's parental rights without statutory opportunity to present evidence regarding fitness as a parent where father had a custodial relationship with minor children); Quillion v. Walcott, 434 U.S. 246 (1978) (holding that father who fails to show a substantial interest in child's welfare is not entitled to full constitutional protection afforded the rights of other parents); Caban v. Mohammed, 441 U.S. 380 (1979) (holding that a New York law denying unwed father same power to oppose his illegitimate child's adoption as unwed mother violated equal protection where unwed father's relationship with child was similar to mother's relationship with child); Lehr v. Robertson, 463 U.S. 248 (1983) (confirming that nature of father's relationship will determine the level of constitutional protection afforded, but holding that a law failing to preserve the father's opportunity to establish a relationship would be constitutionally deficient). These results are explained, at least in part, by the constitutional importance attached to family rights, the resulting heightened scrutiny and the non-emergency nature of adoption proceedings. As a result, this line of cases does not dictate a different result here. To the extent they are pertinent they support the court's view that stronger interests than we have here are subject to weighing and balancing.

    17 As the Comment to Section 2 of the Uniform Anatomical Gift Act (1968) makes clear, "[t]aking into account the very limited time available following death for the successful removal of such critical tissues as the kidney, the liver and the heart, it seems desirable to eliminate all possible question by specifically stating the rights of and the priorities among the survivors."

    18 Mandating a search for the absent parent is not a routine that must be imposed upon the medical authorities at a time of crisis.