2023 New Mexico Statutes › Chapter 24 - Health and Safety › Article 12 - Disposition of Dead Bodies › Section 24-12-4 - Post-mortem examinations and autopsies; consent required.

A. An autopsy or post-mortem examination may be performed on the body of a decedent by a physician or surgeon whenever consent to the procedure has been given by:
(1) written authorization signed by the decedent during the person's lifetime;
(2) authorization of a person or on behalf of any person whom the decedent designated in writing during the person's lifetime to take charge of the decedent's body for burial or other purposes;
(3) authorization of the decedent's surviving spouse;
(4) authorization of an adult child, parent or adult brother or sister of the decedent if there is no surviving spouse or if the surviving spouse is unavailable, incompetent or has not claimed the body for burial after notification of the death of the decedent;
(5) authorization of any other relative of the decedent if none of the persons enumerated in Paragraph (4) of this subsection is available or competent to give authorization; or
(6) authorization of the public official, agency or person having custody of the body for burial if none of the persons enumerated in Paragraphs (2) through (5) of this subsection is available or competent to give authorization.
B. An autopsy or post-mortem examination shall not be performed under authorization given pursuant to the provisions of Paragraph (4) of Subsection A of this section by any one of the persons enumerated if, before the procedure is performed, any one of the other persons enumerated objects in writing to the physician or surgeon by whom the procedure is to be performed.
C. An autopsy or post-mortem examination may be performed by a pathologist at the written direction of the district attorney or the district attorney's authorized representative in any case in which the district attorney is conducting a criminal investigation.
D. An autopsy or post-mortem examination may be performed by a pathologist at the direction of the state, district or deputy medical investigator when the state, district or deputy medical investigator suspects the death was caused by a criminal act or omission or if the cause of death is obscure.
E. For purposes of this section, "autopsy" means a post-mortem dissection of a dead human body in order to determine the cause, seat or nature of disease or injury and includes the retention of tissues customarily removed during the course of autopsy for evidentiary, identification, diagnosis, scientific or therapeutic purposes.
History:
1953 Comp., § 12-7-9, enacted by Laws 1965, ch. 86, § 1; reenacted by 1973, ch. 354, § 4; 1978 Comp., § 24-12-4; 1993, ch. 129, § 1; 2023, ch. 162, § 4.
ANNOTATIONS
Cross references.
— For medical investigations generally,
see
Chapter 24, Article 11 NMSA 1978.
The 2023 amendment,
effective July 1, 2023, substituted "deceased" with "decedent" throughout the section; and in Paragraph A(5), after "enumerated in", deleted "Paragraph (2) through" and added "Paragraph".
The 1993 amendment,
effective June 18, 1993, made minor stylistic changes throughout Subsection A and added Subsection E.
Purpose of Subsection D
is to authorize a medical investigator to order an autopsy when he suspects that criminal conduct caused a death or that the cause of a death is obscure, even when no consent is obtained.
In re Johnson
, 1980-NMSC-069, 94 N.M. 491, 612 P.2d 1302.
State registrar shall issue permit to disinter when medical investigator so requires
pursuant to the duties and responsibilities of his office.
In re Johnson
, 1980-NMSC-069, 94 N.M. 491, 612 P.2d 1302.
Requirement of notice of intended autopsy or disinterment.
— Under some circumstances due process may require than an interested relative be given notice of an intended autopsy or disinterment of a deceased.
In re Johnson
, 1980-NMSC-069, 94 N.M. 491, 612 P.2d 1302.
Religious freedom suit where consent not given.
— The right given by this statute to a number of alternative persons to authorize an autopsy is not co-extensive with the right of any of those same statutorily-named persons to assert a violation of a personal religious freedom if his consent was not obtained.
Smialek v. Begay
, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306, cert. denied, 479 U.S. 1020, 107 S. Ct. 677, 93 L. Ed. 2d 727.
Immunity for wrongful decision to perform autopsy.
— In an action for damages on the basis of an alleged wrongful decision to perform an autopsy, even if this section, which provides for consent for postmortem examinations created a private cause of action, it did not override the state medical investigator's grant of immunity under the Tort Claims Act [41-4-1 to 41-4-27 NMSA 1978].
Begay v. State
, 1985-NMCA-117, 104 N.M. 483, 723 P.2d 252,
rev'd on other grounds
,
Smialek v. Begay
, 1986-NMSC-049, 104 N.M. 375, 721 P.2d 1306.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
22A Am. Jur. 2d Dead Bodies §§ 59, 60, 64 to 69.
Removal and reinterment of remains, 21 A.L.R.2d 472.
Power of court to order disinterment and autopsy or examination for evidential purposes in a civil case, 21 A.L.R.2d 538.
Immunity from liability for damages in tort of state or governmental unit in operating hospital, 25 A.L.R.2d 203, 18 A.L.R.4th 858.
Insurance policy, time for making autopsy or making demand therefor, 30 A.L.R.2d 837.
Disinterment in criminal cases, 63 A.L.R.3d 1294.
Liability for wrongful autopsy, 18 A.L.R.4th 858.
Civil liability in conjunction with autopsy, 97 A.L.R.5th 419.
25A C.J.S. Dead Bodies § 8(3).