BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 1519 A
Assembly Member Ma B
As Amended May 27, 2008
Hearing Date: June 10, 2008 1
Health & Safety Code 5
KB:jd 1
9
SUBJECT
Human remains: commercial display
DESCRIPTION
This bill would, among other things:
prohibit public commercial displays of human
remains unless a permit has been obtained from the
California Science Center (CSC);
authorize the CSC to issue a permit for commercial
displays of human remains only upon the center's
determination that the person has met the requirements
to exhibit human remains;
require regulations for the issuance of permits to
be adopted by the CSC, including a requirement that
the person has obtained valid written authorization
from the decedent, or person authorized to make an
anatomical gift, to publicly display human remains;
would require the CSC to establish a permit fee and
would require the revenue from these fees to be
deposited in the Human Remains Exhibit Permit Fund;
require moneys in the fund to be available to the
CSC, upon appropriation by the Legislature, for the
purpose of funding the administration of the permit
program;
provide that the CSC shall conduct adjudicative
hearings pursuant to the Administrative Procedure Act;
provide that its provisions do not preempt more
restrictive local regulation of the public commercial
display of human remains; and
provide that violations of its provisions is
(more)
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punishable by a civil penalty.
BACKGROUND
This bill has been introduced amidst the growing
controversy caused by traveling exhibits featuring human
corpses, body parts, and fetuses, which have been subjected
to plastination, a process invented by Dr. Gunther von
Hagens in 1977, where fluids and lipids are removed from a
cadaver and replaced with a liquid plastic to prevent
decomposition. Plastinated bodies featured in public
exhibits are stripped of skin to expose internal organs,
bones, muscles, and veins, and are posed in various
positions. The popularity of such traveling exhibits has
increased in the last few years and the tours are earning a
considerable amount of revenue. One such tour, "Bodies?The
Exhibition," owned by Premier Exhibitions, earned a net
income of $7.4 million on revenue of $30.1 million, more
than 70 percent of which came from traveling exhibits of
corpses and body parts. The sources of the plastinated
bodies are two facilities based in Dalian, China. One is
operated by Dr. Gunther von Hagens, the man who invented
the plastination technique, and the other by Dr. Sui
Hongjin, a former von Hagens employee.
While these exhibits of plastinated human corpses are often
touted as providing educational information to the general
public about their bodies, they have also come under
scrutiny from those who are offended by the use of human
corpses in a for-profit venture. Further, in light of
China's inconsisent human rights record, many questions
have been raised as to whether the bodies utilized in the
exhibits were legally obtained and whether decedents
consented to have their bodies placed on display.
Critics assert that many of the remains used in the
exhibitions are actually those of executed prisoners, and
point to the fact that the city of Dalian is in close
proximity to three prison camps. According to Amnesty
International, China's authorities account for 75% of the
world's executions, purportedly executing 3,400 people in
2004 by shooting them in the head or the back of the neck.
Notably, in 2004, the founder of Body Worlds exhibition,
Dr. Gunther von Hagens, was accused of using the bodies of
executed Chinese prisoners for plastination. Although Dr.
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von Hagens denied the allegations, he returned seven bodies
to China after it was determined that two of the bodies had
bullet holes in the back of their heads.
ABC News 20/20 recently conducted an investigation into the
source of the human corpses that end up at plastination
facilities and exhibits. (ABC News 20/20, Brian Ross
Investigates, Bodies: The China Connection, February 15,
2008.) Previously, Premier Exhibitions, the publicly
traded corporation that organizes "Bodies?The Exhibition,"
had publicly stated that all of its bodies were supplied by
the plastination laboratories of the Dalian Medical
University in Dalian, China. However, in the 20/20 report,
the president of the Dalian Medical University denied that
the university supplies bodies to Premier or any company
for public display. 20/20 discovered that the supplier for
Premier's exhibition is actually a private, for-profit
company called the Dalian Medi-Uni Plastination Labs, which
is located 30 miles away from the Dalian Medical
University. The company is run by a professor from the
medical university who stated that the university initially
owned 70 percent of the operation and provided bodies, but
has recently pulled out because of bad publicity. The
20/20 report also contained testimony from an anonymous
dealer of bodies in the black market who described "body
runs" to locations where bodies, including those of
executed prisoners, were sold for $200 to $300. Bills of
lading that accompany the exported plastinated bodies list
"plastic models used for medical teaching." In this
manner, the exporting companies circumvent China's laws
banning the export of human body parts and the United
States' regulations on the transport of human remains.
Following the release of the 20/20 report, authorities from
New York and China opened investigations into the
allegations of the illegal trafficking of human corpses
from China to the United States for public display. The
New York Attorney General's Office served subpoenas on
Premier Exhibitions, which has stated it will fully
cooperate in the investigations. The Chinese Foreign
Ministry has also stated that it is investigating the
alleged body black market, including allegations that
bodies had been shipped to the United States, despite a
2006 law that banned the trade of corpses and commercial
activities involving corpses.
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This bill seeks to ensure all human remains which are
publicly displayed have been lawfully obtained, and that
the decedent, or a person authorized to make an anatomical
gift, has given informed consent to be placed on display.
CHANGES TO EXISTING LAW
Existing law , the Uniform Anatomical Gift Act, regulates
the making of anatomical gifts and the disposition of
donated bodies and body parts. (Health & Safety Code
7150 et seq.)
Existing law provides that the right to control the
disposition of the remains of a deceased person, and the
location and conditions of interment, and arrangements for
funeral goods and services to be provided, unless other
directions have been given by the decedent, vests in, and
the duty of dispositions and the liability for the
reasonable cost of disposition of the remains devolves
upon, a specified list of individuals. (Health & Safety
Code 7100.)
Existing law provides that a decedent, prior to death, may
direct, in writing, the disposition of his or her remains.
(Health & Safety Code 7100.1.)
Existing law provides that a person who deposits or
disposes of any human remains in any place, except in a
cemetery, is guilty of a misdemeanor, and makes exception
for the disposition of cremated remains. (Health & Safety
Code 7054.)
This bill would, for the purposes of this bill, define
"commercial display" as either of the following:
(1) A display for which the public is charged a fee or
other consideration as a condition of viewing.
(2) A display for which an exhibitor accepts payment or
other consideration.
This bill would, for the purposes of this bill, define
"exhibitor" as a person or entity who publicly displays or
contracts to publicly display human remains.
This bill would provide that its provisions shall not apply
to a display of human remains that is any of the following:
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(1) more than 80 years old;
(2) consisting solely of human teeth or hair;
(3) part of an ordinary display or viewing of the
deceased at a funeral establishment or part of a
similar funeral or memorial service;
(4) an object of religious veneration;
(5) in the possession of museum facility.
However, if the museum facility paid or offered other
consideration to the exhibitor to display the remains, and
the remains are not exempt, the exhibitor would be required
to obtain a permit.
This bill would, for the purposes of this bill, define
"Human remains" as all or part of the body of a deceased
person, regardless of the stage of decomposition.
This bill would, for the purposes of this bill, define
"Museum facility" as a public or private nonprofit
institution that is accredited by the American Association
of Museums or is a party of an accredited college or
university, and that is organized on a permanent basis for
essentially educational or aesthetic purposes and that owns
or uses tangible objects, cares for those objects, and
exhibits them to the general public on a regular basis.
This bill would provide a public commercial display of
human remains is prohibited unless a permit for the display
has been issued by the California Science Center.
This bill would provide that any person who violates this
section shall be subject to a civil penalty of up to
$10,000 for each violation.
This bill would provide that the California Science Center
may issue a permit to any person for the public commercial
display of human remains only upon a determination by the
director that the person has met the requirements to
exhibit human remains.
This bill would require regulations to be adopted by the
California Science Center and to include a requirement that
the person has obtained valid written authorization from
specific individuals to publicly display human remains for
consideration.
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This bill would require the center to establish a permit
fee and would require the revenue from these fees to be
deposited in the Human Remains Exhibit Permit Fund, which
this bill would create.
This bill would provide that whenever the center is
authorized or required by statute, regulation, or due
process to conduct an adjudicative hearing leading to a
final decision of the director of the center, the
proceeding shall be conducted pursuant to the
administrative adjudication provisions of the Government
Code.
This bill would require moneys in the fund to be available
to the center, upon appropriation by the Legislature, for
the purpose of funding the administration of the permit
program.
This bill would provide that none of its provisions shall
be construed to apply to the utilization of human remains
in a manner that meets the purposes set forth in the
Uniform Anatomical Gift Act.
This bill would provide that none of its provisions shall
be construed to apply to the publisher of any newspaper,
periodical, or other publication, or the producer of a
motion picture or other visual or audiovisual work, or any
radio or television broadcaster, or the owner or operator
of any cable, satellite, or other medium of communication
who broadcasts, produces or publishes, including over the
Internet.
This bill would provide that its provisions do not preempt
more restrictive local regulation of public display of
human remains for commercial purposes.
This bill would make findings and declarations with respect
to the public display of human remains for commercial
purposes.
COMMENT
1. Stated need for the bill
According to the author, while exhibitions of plastinated
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human remains may be informative, there has been a
general public concern that bodies exhibited were once
prisoners, government and political dissenters, hospital
patients, and the poor. The author maintains that the
state must protect unwilling and unclaimed bodies from
unethical treatment and from companies which exploit
human remains for profit.
2.Overview of California laws on the disposition of human
remains and anatomical gifts
a. Rights and duties regarding human remains
Under current law, a decedent, prior to death, may
direct, in writing, the disposition of his or her
remains. (Health & Safety Code 7100.1.) If the
decedent leaves no directions, then the right to
control the disposition of the remains vests in a
specified list of individuals, which includes certain
surviving family members. (Health & Safety Code
7100.)
Unclaimed human bodies retained by the state may only
be used for the sole purpose of instruction and study
in the promotion of medical, chiropractic, and
embalming education and science within the state.
(Health & Safety Code 7203.) Any person who
unlawfully disposes, uses, or sells the body of an
unclaimed dead person is guilty of a misdemeanor.
(Health & Safety Code 7208.) The unauthorized
removal of human remains from any place where it has
been interred, or from any place where it is deposited
while awaiting interment or cremation, with intent to
sell or to dissect the remains, is punishable by
imprisonment in state prison. (Health & Safety Code
7051.) Further, any person who deposits or disposes
of any human remains in any place, except in a
cemetery, is guilty of a misdemeanor. (Health &
Safety Code 7054.)
b. The Uniform Anatomical Gift Act
California's Uniform Anatomical Gift Act (UAGA)
(Health & Safety Code 7150 et seq.) regulates the
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donations of anatomical gifts, and is designed to
respect the autonomy interest of individuals to make
or not make an anatomical gift. The UAGA specifies
who may make a gift and directs the manner in which a
gift may be made, amended, revoked, or refused to be
made. The National Conference of Commissioners on
Uniform State Laws (NCCUSL) first proposed the Uniform
Anatomical Gift Act in 1968, and it was adopted in
some form by all 50 states. Prior to the enactment of
the UAGA, people could not dictate how their bodies
should be disposed of upon death because there was no
property interest in a dead body. The UAGA
established a legal means for medical schools and
other research facilities to obtain cadavers by
voluntary donation. Last year, California joined 16
other states in revising the Uniform Anatomical Gift
Act, with the enactment of AB 1689 (Lieber, Chapter
629, Statutes of 2007).
3.This policy underlying this bill is consistent with
California's statutory scheme regarding the disposition
of human remains and anatomical gifts
Underlying the state's statutory scheme regarding human
remains and anatomical gifts is the premise that a person
has the right to determine the disposition of his/her
body upon their death, for both internment purposes and
the making of anatomical gifts. Also inherent in
California law is that human remains, whether or not
unclaimed, must be treated with dignity and respect.
Consequently, consent from the decedent, or a person
authorized to make an anatomical gift on behalf of the
decedent, is always required before an anatomical gift
may be made. Narrow exceptions to the consent
requirement have been crafted where a body is unclaimed,
and the use of the body will serve important educational
or research purposes. However, the unauthorized use,
disposal, or sale of a body is never permitted, but
rather could result in criminal prosecution. The use of
a plastinated human corpse in a for-profit public display
without prior authorization from the decedent, or other
authorized individual, is thus unprecedented in this
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state, and is contrary to the safeguards which currently
exist in statute.
4.This bill would require the California Science Center to
enact regulations for the issuance of permits for the
public display of human remains
The Legislature may, after declaring a policy and fixing
a primary standard, confer upon executive or
administrative officers the power to prescribe
administrative rules and regulations to promote the
purpose of the legislation and to carry it into effect.
( See Nelson v. Dean, (1946) 27 Cal.2d 873, 881.) The
essentials of the legislative function are the
determination and formulation of policy, and the means of
enforcing the policy may constitutionally be left in the
hands of others. (Id.)
This bill would prohibit all public exhibits featuring
human corpses unless a permit for the exhibit is issued
by the California Science Center (CSC), a state agency
administered by a nine-member board of directors
appointed by the Governor. The CSC would be required to
confirm that written, informed consent was obtained from
all of the decedents on display, or from individuals who
were authorized to make an anatomical gift of the
decedents' bodies and body parts. In the event that the
human remains are of a minor, the written consent would
have to be executed by the minor's parent(s) or legal
guardian(s). This type of oversight is consistent with
California's public policy in ensuring that human remains
are not unlawfully utilized and in preserving an
individual's autonomy over their own body.
However, CSC's involvement with past and present
exhibitions of plastinated human remains raises questions
as to whether it is the appropriate state agency to
oversee the permit program. Currently, the CSC is
featuring "Body Worlds 3 & The Story of the Heart,"
another exhibit of plastinated human bodies created by
Dr. Gunther von Hagens. The CSC was the first to exhibit
plastinated human remains in the United States, and was
followed by major museums in cities across the country.
According to the CSC, when it first considered hosting
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"Body Worlds," it conducted the most extensive review it
has ever done for any exhibit, which helped it verify
that the body specimens were properly acquired through
body donations. The CSC has stressed the importance of
knowing the origin of the bodies and verifying that the
bodies were properly donated for the purpose of public
exhibition.
Nonetheless, according to a 2006 NPR report, while the
research commissioned by the California Science Center in
2004 verified the existence of a pool of approximately
200 death certificates that matched donor forms, no
independent observer has matched those documents to the
bodies on display. Thus, the NPR report notes, there is
no clear paper trial from a deceased donor to a finished
plastinated body. ( See "Cadaver Exhibits Are Part
Science, Part Sideshow." By Neda Ulaby, May 10, 2006,
NPR,
http://www.npr.org/templates/story/story.php?storyId=55533
29 .)
Considering the conflict of interest that would result
from delegating the authority for permit approval to the
CSC, this committee may wish to consider whether a
different state department or agency, such as the
Attorney General's office, should implement and oversee
the permit program. The Attorney General may be the most
appropriate entity in ensuring that California is not
unwittingly encouraging the violation of human rights
overseas and participating in the black market for human
bodies.
SHOULD NOT THE AUTHORITY TO ISSUE PERMITS BE DELEGATED TO
A NEUTRAL AGENCY OR DEPARTMENT SUCH AS THE ATTORNEY
GENERAL'S OFFICE?
Additionally, any delegation of authority must come with
clear parameters. The current language of the bill does
not include a clear limitation on the type of regulations
that the CSC would be allowed to promulgate. This lack
of clarity could be interpreted to give unbridled
legislative authority to a state agency.
SHOULD NOT THE DELEGATED AUTHORITY TO ISSUE PERMITS BE
ACCOMPANIED WITH CLEAR PARAMETERS?
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5. This bill would make certain exemptions to the
permit requirement
The bill would make certain exemptions to the permit
requirement, where the need for written authorization is
not as compelling, such as where the human remains are
more than 80 years old (mummies, for example) or are part
the ordinary display at a funeral or memorial service.
This bill also contains language to clarify that its
provisions should not be applied to companies, such as
television networks or newspapers, which publish or
broadcast images of human remains.
6. This bill would not preempt more restrictive local
ordinances
The City of San Francisco is currently the only city
which has enacted an ordinance that specifically
prohibits the display of human remains without
appropriate written consent. (S.F. Police Code
11.1-788 (2005). ) The ordinance was enacted in August
2005 in response to a cadaver exhibit called "The
Universe Within." The exhibit raised protests from the
local communities who were concerned that the
unidentified bodies had been improperly obtained from
China. Further, San Francisco's health department began
an investigation into the origins of the exhibit after
some of the bodies began leaking silicon and liquefied
human fat. Assembly Member Ma, then a San Francisco
Supervisor, spearheaded the effort to enact the ordinance
in order to address these concerns.
In addition to providing baseline requirements for the
exhibition of plastinated human bodies in the state, this
bill would permit cities and counties to enact more
restrictive legislation, thereby ensuring that local
entities have flexibility to address issues that may
arise within their own jurisdictions.
7. Pending federal legislation
There are currently no federal or state laws which
directly apply to the practice of placing plastinated
human corpses on display, although legislation is pending
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in several states and in Congress. H.R. 5677 (Akin)
which is currently pending in the House Committee of Ways
and Means, would prohibit the importation of plastinated
human remains into the country. The bill would also
impose civil penalties of between $3,000 and $10,000 for
each violation. Notably, H.R. 5677 is much more
restrictive than AB 1519, and would effectively end the
exhibition of plastinated human bodies in the United
States. In contrast, AB 1519 imposes restrictions on
these exhibitions which are narrowly tailored to serve
the state's interest in protecting the integrity of
anatomical gifts, and ensuring that human remains are not
unduly exploited.
8. Opposition
In opposition to this bill, Premier Exhibitions writes:
"Premier's chief concern with this bill is that the bill
would retroactively apply to existing exhibits and
specimens and, as a result, would shut down its currently
working exhibitions in California because of new
requirements unrelated to public health and safety that
were not required when those specimens were legally
acquired."
Premier further states:
"China is the source for Premier's anatomical specimens.
China is known as the expert in the field of
plastination, a process where the body fluids are
replaced with a polymer plastic but maintain the look and
feel of the original specimen. Just as the State of
California does not have consent forms for each body
donated to medical schools, dental schools, and teaching
hospitals throughout the state, neither does the Chinese
government. It would be impossible to retroactively
comply with the provision in this bill requiring consent
for the specimens. The specimens in the current exhibits
reflect remains from people who died at least four years
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ago.[sic]"
Premier requests that the bill be amended to contain a
grandfather clause for specimens that are currently on
display or have previously been on display in California
as long as they do not constitute a threat to public
health.
Premier's objections are largely premised on the fact
that its specimens were legally obtained and pose no
threat to public health and safety. However, Premier's
assertions are hard to accept since it recently admitted,
as part of a settlement with the New York Attorney
General's Office, that it could not prove that the bodies
were not those of prisoners who might have been tortured
or executed. Under the terms of the settlement, the
exhibit cannot obtain new bodies without documentation
proving the individual's identity, cause of death, and
consent for the body to be displayed. Premier must also
display, on its web site and on a sign at the exhibit
entrance, a statement explaining that it is not able to
confirm that the bodies on display were not Chinese
prisoners who may have been victims of torture and
execution. The settlement does not require Premier to
shut down their current exhibits. ( See "Bodies Exhibitors
Admit Corpse Origins Are Murky," New York Times, May 30,
2008.)
While this bill may effectively put an end to Premier's,
and other companies', current exhibitions of plastinated
human bodies in the state, it is a proper exercise of the
state's police powers, especially given that the
continued public display of persons who might have been
tortured and executed is completely contrary to the
state's public policy. If a grandfather clause were to
be included in the bill for current and previous
exhibits, companies would just continue to use bodies of
questionable origins indefinitely. Further, nothing in
the bill would prohibit Premier from obtaining a permit
for future exhibits, so long as they can prove that the
bodies were legally obtained with informed consent.
These requirements are not unduly burdensome and parallel
those imposed by the settlement with the New York
Attorney General's Office.
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Support: The Laogai Research Foundation; California State
Coroner's Association; No Bodies for Profit;
California Funeral Directors Association; Jewish
Public Affairs Committee; California Hepatitis C
Task Force; California Association of Museums;
San Diego Natural History Museum; Seattle Museum
of the Mysteries
Opposition:Premier Exhibitions
HISTORY
Source:Author
Related Pending Legislation: None Known
Prior Legislation:None Known
Prior Vote:Assembly Committee on Arts, Entertainment,
Sports, Tourism, and Internet Media (Ayes 7, Noes
0)
Assembly Floor (Ayes 51, Noes 5)
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