国立高雄第一科技大学科技法律研究所课程：医疗与法律项目：案例讨论6.ppt

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) Californias 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,FN1 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). 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. 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. 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 deceaseds remains; it then makes it possible for that person to *801 do so by also giving him the right to do so. Again, that hardly looks like the kind of interest that United States Constitution was designed to protect. when the state sees to it that the duty, with its necessarily associated right, devo