STATE of Florida, et al., Appellants, v. Wade POWELL, et ux., et al., Appellees, 497 So. 2d 1188

OVERTON, Justice. This is a petition to review a circuit court order finding unconstitutional

section 732.-9185, Florida Statutes (1983), which authorizes medical examiners to remove corneal tissue from decedents during statutorily required autopsies when such tissue is needed for transplantation. The statute prohibits the removal of the corneal tissue if the next of kin objects, but does not require that the decedent’s next of kin be notified of the procedure. The Fifth District Court of Appeal certified that this case presents a question of great public importance requiring immediate resolution by this Court. We accept jurisdiction pursuant to

article V,

section 3(b)(5), Florida Constitution, and, for the reasons expressed below, find that the statute is constitutional. The challenged statute provides: Corneal removal by medical examiners.—

(1) In any case in which a patient is in need of corneal tissue for a transplant, a district medical examiner or an appropriately qualified designee with training in ophthalmologic techniques may, upon request of any eye bank authorized under s. 732.918, provide the cornea of a decedent whenever all of the following conditions are met: (

a) A decedent who may provide a suitable cornea for the transplant is under the jurisdiction of the medical examiner and an autopsy is required in accordance with s. 406.11. (

b) No objection by the next of kin of the decedent is known by the medical examiner. (

c) The removal of the cornea will not interfere with the subsequent course of an investigation or autopsy.

(2) Neither the district medical examiner nor his appropriately qualified desig-nee nor any eye bank authorized under s. 732.918 may be held liable in any civil or criminal action for failure to obtain consent of the next of kin. The trial court decided this case by

summary judgment. The facts are not in dispute. On June 15, 1983, James White drowned while swimming at the city beach in Dunellon, Florida. Associate Medical Examiner Dr. Thomas Techman, who is an appellant in this cause, performed an autopsy on James’ body at Leesburg Community Hospital. On July 11, 1983, Anthony Powell died in a motor vehicle accident in Marion County. Medical Examiner Dr. William H. Shutze, who is also an appellant in this cause, performed an autopsy on Anthony’s body. In each instance, under the authority of

section 732.9185, the medical examiner removed corneal tissue from the decedent without giving notice to or obtaining consent from the parents of the decedent. James’ and Anthony’s parents, who are the appellees in this case, each brought an action claiming damages for the alleged wrongful removal of their sons’ corneas and seeking a judgment declaring

section 732.9185 unconstitutional. The actions were subsequently consolidated. In its judgment, the trial court noted that

section 732.9185 “has as its purpose the commendable and laudable objective of providing high quality cornea tissue to those in need of same,” but declared the statute unconstitutional on the grounds that it (1) deprives survivors of their fundamental personal and property right to dispose of their deceased next of kin in the same condition as lawful autopsies left them, without procedural or substantive due process of law; (2) creates an invidious classification which deprives survivors of their right to equal protection; and (3) permits a taking of private property by state action for a non-public purpose, in violation of

article X,

section 6(a), of the Florida Constitution. The court concluded that the state has no compelling interest in non-consensual removal of appellees’ decedents’ corneal tissue that outweighs the survivors’ right to dispose of their sons’ bodies in the condition death left them. For the reasons expressed below, we reject these findings. In addressing the issue of the statute’s constitutionality, we begin with the premise that a person’s constitutional rights terminate at death. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Silkwood v.

Kerr-McGee Corp., 637 F.2d 743 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981); Guyton v. Phillips, 606 F.2d 248 (9th Cir.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980). If any rights exist, they belong to the decedent’s next of kin. Next, we recognize that a legislative act carries with it the presumption of validity and the party challenging a statute’s constitutionality must carry the burden of establishing that the statute bears no reasonable relation to a permissible legislative objective. Johns v. May, 402 So.2d 1166 (Fla.1981).

See also Harrah Independent School District v. Martin, 440 U.S. 194, 198, 99 S.Ct. 1062, 1064, 59 L.Ed.2d 248 (1979). In determining whether a permissible legislative objective exists, we must review the evidence arising from the record in this case. The unrebutted evidence in this record establishes that the State of Florida spends approximately $138 million each year to provide its blind with the basic necessities of life.

At present, approximately ten percent of Florida’s blind citizens are candidates for cornea transplantation, which has become a highly effective procedure for restoring sight to the functionally blind. As advances are made in the field, the number of surgical candidates will increase, thereby raising the demand for suitable corneal tissue. The increasing number of elderly persons in our population has also created a great demand for corneas because corneal blindness often is age-related. Further, an affidavit in the record states: Corneal transplants are particularly important in newborns.

The brain does not learn to see if the cornea is not clear. There is a critical period in the first few months of life when the brain “learns to see.” If the cornea is not clear, the brain not only does not “learn to see,” but the brain loses its ability to “learn to see.” Hence, corneal transplant in children must be made as soon as practicable after the problem is discovered. Without the medical examiner legislation, there would be virtually no corneal-tissue available for infants and these children would remain forever blind.

The record reflects that the key to successful corneal transplantation is the availability of high-quality corneal tissue and that corneal tissue removed more than ten hours after death is generally unsuitable for transplantation. The implementation of

section 732.9185 in 1977 has, indisputably, increased both the supply and quality of tissue available for transplantation. Statistics show that, in 1976, only 500 corneas were obtained in Florida for transplantation while, in 1985, more than 3,000 persons in Florida had their sight restored through corneal transplantation surgery. The record also demonstrates that a qualitative difference exists between corneal tissue obtained through outright donation and tissue obtained pursuant to

section 732.9185. In contrast to the tissue donated by individuals, which is largely unusable because of the advanced age of the donor at death, approximately eighty to eighty-five percent of tissue obtained through medical examiners is suitable for transplantation. The evidence establishes that this increase in the quantity and quality of available corneal tissue was brought about by passage of the statute and is, in large part, attributable to the fact that

section 732.9185 does not place a duty upon medical examiners to seek out the next of kin to obtain consent for cornea removal. An affidavit in the record reveals that, before legislation authorized medical examiners in California to remove corneas without the consent of the next of kin, the majority of the families asked by the Los Angeles medical examiner’s office responded positively; however, approximately eighty percent of the families could not be located in sufficient time for medical examiners to remove usable corneal tissue from the decedents.

An autopsy is a surgical dissection of the body; it necessarily results in a massive intrusion into the decedent. This record reflects that cornea removal, by comparison, requires an infinitesimally small intrusion which does not affect the decedent’s appearance. With or without cornea removal, the decedent’s eyes must be capped to maintain a normal appearance. Our review of

section 732.9185 reveals certain safeguards which are apparently designed to limit cornea removal to instances in which the public’s interest is greatest and the impact on the next of kin the least: corneas may be removed only if the decedent is under the jurisdiction of the medical examiner; an autopsy is mandated by Florida law; and the removal will not interfere with the autopsy or an investigation of the death. Further, medical examiners may not automatically remove tissue from all decedents subject to autopsy; rather, a request must be made by an eye bank based on a present need for the tissue.

We conclude that this record clearly establishes that this statute reasonably achieves the permissible legislative objective of providing sight to many of Florida’s blind citizens. We next address the trial court’s finding that

section 732.9185 deprives appellees of a fundamental property right. All authorities generally agree that the next of kin have no property right in the remains of a decedent. Although, in Dunahoo v.

Bess, 146 Fla. 182, 200 So. 541 (1941), this Court held that a surviving husband had a “property right” in his wife’s body which would sustain a claim for negligent embalming, id. at 183, 200 So. at 542, we subsequently clarified our position to be consistent with the majority view that the right is limited to “possession of the body ... for the purpose of burial, sepulture or other lawful disposition,” and that interference with this right gives rise to a tort action. Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950).

More recently, we affirmed the district court’s determination that the next of kin’s right in a decedent’s remains is based upon "the personal right of the decedent’s next of kin to bury the body rather than any property right in the body itself.” Jackson v. Rupp, 228 So.2d 916, 918 (Fla. 4th DCA 1969), affirmed, 238 So.2d 86 (Fla.1970). The view that the next of kin has no property right but merely a limited right to possess the body for burial purposes is universally accepted by courts and commentators. See Lawyer v. Kernodle, 721 F.2d 632 (8th Cir.1983); Sinai Temple v.

Kaplan, 54 Cal.App.3d 1103, 127 Cal.Rptr. 80 (1976); Dougherty v. Mercantile-Safe Deposit & Trust Co., 282 Md. 617, 387 A.2d 244 (Ct.App.1978); Finn v. City of New York, 70 Misc.2d 947, 335 N.Y.S.2d 516 (Civ.Ct.1972), rev’d on other grounds, 76 Misc.2d 388, 350 N.Y.S.2d 552 (Sup.Ct.1973); Sullivan v. Catholic Cemeteries, Inc., 113 R.I. 65, 317 A.2d 430 (1974); Sadler & Sadler, Transplantation and the Law: The Need for Organized Sensitivity, 57 Geo. L.J. 5 (1968); Sanders & Dukeminier, Medical Advance and Legal Lag: Hemodialysis and Kidney Transplantation, 15 U.C.L.A.L.Rev. 357 (1968).

Prosser states: A number of decisions have involved the mishandling of dead bodies.... In these cases the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has' no pecuniary value but is a source of liability for funeral expenses.

It seems reasonably obvious that such “property” is something evolved out of thin air to meet the occasion, and that it is in reality the personal feelings of the survivors which are being protected, under a fiction likely to deceive no one but a lawyer. W. Prosser, The Law of Torts, 43-44 (2d ed. 1955) (footnotes omitted).

The Maryland Court of Appeals has summarized the law as follows: It is universally recognized that there is no property in a dead body in a commercial or material sense. “[I]t is not part of the assets of the estate (though its disposition may be affected by the provision of the will); it is not subject to replevin; it is not property in a sense that will support discovery proceedings; it may not be held as security for funeral costs; it cannot be withheld by an express company, or returned to the sender, where shipped under a contract call-' ing for cash on delivery; it may not be the subject of a gift causa mortis; it is not common law larceny to steal a corpse.

Rights in a dead body exist ordinarily only for purposes of burial and, except with statutory authorization, for no other purpose.” Snyder v. Holy Cross Hosp., 30 Md.App. 317 at 328 n. 12, 352 A.2d 334 at 340, quoting P.E. Jackson, The Law of Cadavers and of Burial and Burial Places (2d ed. 1950). Dougherty, 282 Md. at 620 n. 2, 387 A.2d at 246 n. 2. Under the facts and circumstances of these cases, we find no taking of private property by state action for a non-public purpose in violation of

article X,

section 6, of the Florida Constitution. We note that the right to bring an action in tort does not necessarily invoke constitutional protections. Decisions of the United States Supreme Court have clearly established that the loss of a common law right by legislative act does not automatically operate as a deprivation of substantive due process. Tort actions may be restricted when necessary to obtain a permissible legislative objective. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 n. 32, 98 S.Ct. 2620, 2638 n. 32, 57 L.Ed.2d 595 (1978).

Appellees also assert that their right to control the disposition of their decedents’ remains is a fundamental right of personal liberty protected against unreasonable governmental intrusion by the due process clause. Appellees argüe that, because the statute permits the removal of a decedent’s corneas without reference to his family’s preferences, it infringes upon a right, characterized as one of religion, family, or privacy, which is fundamental and must be subjected to strict scrutiny.

Ap-pellees rely upon a line of decisions from the United States Supreme Court which recognize the freedom of personal choice in matters of family life as one of the liberties protected by the due process clause. See, e.g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Appellees also point out that the United States Supreme Court has found rights to personal privacy in connection with activities relating to marriage, Boddie v.

Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); contraception, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); abortion, Roe v. Wade; and child-rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). According to appellees, the theme which runs through these cases, and which compels the invalidation of

section 732.9185, is the protection from governmental interference of the right of free choice in decisions of fundamental importance to the family. We reject appellees’ argument. The cases cited recognize only freedom of choice concerning personal matters involved in existing, ongoing relationships among living persons as fundamental or essential to the pursuit of happiness by free persons.

We find that the right of the next of kin to a tort claim for interference with burial, established by this Court in Dunahoo, does not rise to the constitutional dimension of a fundamental right traditionally protected under either the United States or Florida Constitution. Neither federal nor state privacy provisions protect an individual from every governmental intrusion into one’s private life, see Florida Board of Bar Examiners Re: Applicant, 443 So.2d 71 (Fla.1983), especially when a statute addresses public health interests. Whalen v.

Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (state accorded wide latitude in constitutional privacy terms to safeguard health); Roe v. Wade (review less exacting when state asserts effort to safeguard health). The record contains no evidence that the appellees’ objections to the removal of corneal tissues for human transplants are based on any “fundamental tenets of their religious beliefs.” Wisconsin v.

Yoder, 406 U.S. at 218, 92 S.Ct. at 1534. “[T]he very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Id. at 215-16, 92 S.Ct. at 1533. We also reject the trial court’s finding that

section 732.9185 creates an invidious classification regarding the next of kin of deceased persons. “Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others.” Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 264 (1979). We find that the statute’s effect on the next of kin is incidental and does not offend equal protection. In view of our finding that the appellees have no protectable liberty or property interest in the remains of their decedents, we need not address the argument that

section 732.9185 violates procedural safeguards guaranteed by the due process clause. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In conclusion, we hold that

section 732.-9185 is constitutional because it rationally promotes the permissible state objective of restoring sight to the blind. In so holding, we note that laws regarding the removal of human tissues for transplantation implicate moral, ethical, theological, philosophical, and economic concerns which do not readily lend themselves to analysis within a traditional legal framework. Applying constitutional standards of review to

section 732.-9185 obscures the fact that at the heart of the issue lies a policy question which calls for a delicate balancing of societal needs and individual concerns more appropriately accomplished by the legislature. For the reasons expressed, we reverse the trial court’s order and remand this cause to the trial court with directions to enter judgment consistent with this opinion. It is so ordered. McDonald, C.J., and ADKINS, BOYD, EHRLICH and BARKETT, JJ., concur. SHAW, J., dissents with an opinion. .

The Whites named as defendants Shutze, Techman, Keith Gauger, who is an investigator for the medical examiner's office in that district, and the State of Florida. The Powells named as defendants Shutze and the Monroe Regional Medical Center. Dade County, The Medical Eye Bank, Inc., North Florida Lions Eye Bank, Inc., Florida Lions Eye Bank, Inc., Florida Medical Association, Inc., Florida Society of Ophthalmology, Inc., and Eye Bank Association of America, Inc., were each permitted to intervene as parties in support of the constitutionality of

section 732.9185. The Reverend Thomas J. Price of the Florida Conference of United Methodist Churches and the Rabbinical Association of Greater Miami filed amicus briefs in support of the appellees’ position. . The appellees also challenged as unconstitutional § 406.11, Fla.Stat. (1983), which provides medical examiners with the authority to perform autopsies under circumstances enumerated in the statute. The trial court upheld that statutory provision, and that finding is not challenged in this proceeding. .

The American Law Institute sets forth the tort of interfering with the "right of burial” as follows: "One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body." Restatement (Second) of Torts § 868 (1979). . Courts in Georgia and Michigan have upheld the constitutionality of cornea removal statutes similar to Florida’s. See Georgia Lions Eye Bank, Inc. v.

Lavant, 255 Ga. 60, 335 S.E.2d 127 (1985), cert. denied, — U.S.-, 106 S.Ct. 1464, 89 L.Ed.2d 721 (1986); Tillman v. Detroit Receiving Hospital, 138 Mich.App. 683, 360 N.W.2d 275 (1984).