§ 38-7-119 — Unauthorized video or audio recordings of autopsies

(a) (1) Except as provided in subsection (c), it is an offense for the chief medical examiner, a county medical examiner, or pathologist designated pursuant to § 38-7-105 , or any agent or employee of the chief medical examiner, a county medical examiner, or pathologist, to contract with or grant authorization to an unauthorized person or an external entity to photograph, videotape, or otherwise capture visual images, or audio recordings in whatever form of a deceased human body, a human autopsy or a body immediately prior to, during or immediately following an autopsy. (2) No person shall distribute, publish or otherwise disseminate any autopsy photographs, videotape or other visual image or any autopsy audio recording without the written consent of the next of kin or personal representative in the order established pursuant to subdivision (c)(1)(A), unless such use is consistent with subdivision (c)(1)(B), (c)(1)(C) or (c)(1)(D). (b) Nothing in this section shall prevent the chief medical examiner, a county medical examiner, or pathologist designated pursuant to § 38-7-105 , or any agent or employee of the chief medical examiner, county medical examiner, or pathologist, from carrying out training efforts or such person's statutory responsibilities. (c) (1) A person is not considered "unauthorized" for purposes of subsection (a) if such person photographs, videotapes, or otherwise captures visual images, or audio recordings in whatever form of a deceased human body, human autopsy or a body immediately prior to, during or immediately following such an autopsy, if it is done with the express written consent or at the direction of: (A) The next-of-kin or personal representative of the deceased in the following order of priority: (i) Spouse; (ii) Any adult child; (iii) Parents; (iv) Any sibling; or (v) Administrator or executor, if appointed; (B) A law enforcement agency or district attorney general, for official use only; (C) A court order or subpoena; or (D) An attorney representing a defendant in a criminal case where the original photographs, images or records of the chief medical examiner, a county medical examiner, coroner or pathologist designated pursuant to § 38-7-105 are not available through discovery or are otherwise not sufficient for the defense of such defendant. (2) In determining whether the next-of-kin of the deceased is authorized to give consent, the chief medical examiner, county medical examiner, or pathologist designated pursuant to § 38-7-105 shall refer to the priority order in subdivision (c)(1)(A). If a next-of-kin higher on the priority lists consents, the lack of consent of any next-of-kin lower on the list is irrelevant. If a next-of-kin higher on the priority list refuses to give consent, consent by a next-of-kin lower on the list is also irrelevant. (d) A chief medical examiner, a county medical examiner, or pathologist designated pursuant to § 38-7-105 , or any agent or employee of a chief medical examiner, a county medical examiner, or pathologist, shall incur no criminal or civil liability for permitting a person to photograph, videotape, or otherwise capture visual images, or audio recordings in whatever form of a deceased human body or a human autopsy or a body immediately prior to, during or immediately following an autopsy as a result of the consent to such conduct given by the next-of-kin, if such official is presented with the written consent of a next-of-kin of the deceased who is higher on the priority list set out in subdivision (c)(1)(A) than any next-of-kin who does not consent. (e) To the extent that the chief medical examiner, a county medical examiner, or pathologist designated pursuant to § 38-7-105 , or any agent or employee of the chief medical examiner, county medical examiner, or pathologist, is a covered entity under the privacy regulations promulgated pursuant to the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), nothing in this section shall be construed to preempt any provisions of those regulations that provide greater protection of the deceased's privacy than does this section. (f) (1) A violation of subdivision (a)(1) is a Class A misdemeanor punishable by fine only. (2) A violation of subdivision (a)(1) is a Class A misdemeanor punishable by fine or imprisonment if the chief medical examiner, a county medical examiner, coroner or pathologist, or an agent or employee of the chief medical examiner, a county medical examiner, coroner or pathologist, receives compensation or other thing of value as an inducement to violate this section. (3) A violation of subdivision (a)(2) is a Class A misdemeanor.

Legislative History

Acts 2005, ch. 216, § 1; 2009, ch. 276, §§ 1, 2.