Law:Division 7. Dead Bodies (California)

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Contents

Part 1. General Provisions

Chapter 1. Definitions

Ca Codes (hsc:7000-7025) Health And Safety Code Section 7000-7025



7000. The definitions in this chapter apply to this division, Division 8 (commencing with Section 8100) and Division 102 (commencing with Section 102100) of this code, Chapter 12 (commencing with Section 7600) of Division 3 of the Business and Professions Code, and Chapter 19 (commencing with Section 9600) of Division 3 of the Business and Professions Code.


7001. "Human remains" or "remains" means the body of a deceased person, regardless of its stage of decomposition, and cremated remains.

7002. "Cremated remains" means the ashes and bone fragments of a human body that are left after cremation in a crematory, and includes ashes from the cremation container. "Cremation remains" does not include foreign materials, pacemakers, or prostheses.


7003. "Cemetery" means either of the following: (a) Any of the following that is used or intended to be used and dedicated for cemetery purposes: (1) A burial park, for earth interments. (2) A mausoleum, for crypt or vault interments. (3) A crematory and columbarium, for cinerary interments. (b) A place where six or more human bodies are buried.


7004. "Burial park" means a tract of land for the burial of human remains in the ground, used or intended to be used, and dedicated, for cemetery purposes.

7005. Except in Part 5 (commencing with Section 9501) of Division 8, "mausoleum" means a structure or building for the entombment of human remains in crypts or vaults in a place used, or intended to be used, and dedicated, for cemetery purposes.


7006. "Crematory" means a building or structure containing one or more furnaces for the reduction of bodies of deceased persons to cremated remains.

7006.3. "Cremation chamber" means the enclosed space within which the cremation of human remains is performed.


7006.5. "Cremation container" means a combustible, closed container resistant to leakage of bodily fluids into which the body of a deceased person is placed prior to insertion in a cremation chamber for cremation.

7006.7. "Cremated remains container" means a receptacle in which cremated remains are placed after cremation.


7007. Except in Part 5 (commencing with Section 9501) of Division 8, "columbarium" means a structure, room, or other space in a building or structure containing niches for inurnment of cremated human remains in a place used, or intended to be used, and dedicated, for cemetery purposes.


7008. "Crematory and columbarium" means a building or structure containing both a crematory and columbarium.


7009. "Interment" means the disposition of human remains by entombment or burial in a cemetery or, in the case of cremated remains, by inurnment, placement or burial in a cemetery, or burial at sea as provided in Section 7117.

7010. "Cremation" means the process by which the following three steps are taken: (a) The reduction of the body of a deceased human to its essential elements by incineration. (b) The repositioning or moving of the body or remains during incineration to facilitate the process. (c) The processing of the remains after removal from the cremation chamber pursuant to Section 7010.3.

7010.3. "Processing" means the removal of foreign objects, pursuant to Section 7051, and the reduction of the particle size of cremated remains by mechanical means including, but not limited to, grinding, crushing, and pulverizing to a consistency appropriate for disposition.


7010.5. "Residue" means human ashes, bone fragments, prostheses, and disintegrated material from the chamber itself, imbedded in cracks and uneven spaces of a cremation chamber, that cannot be removed through reasonable manual contact with sweeping or scraping equipment. Material left in the cremation chamber, after the completion of a cremation, that can be reasonably removed shall not be considered "residue."


7010.7. "Scattering" means the authorized dispersal of cremated remains at sea, in other areas of the state, or commingling in a defined area within a dedicated cemetery, in accordance with this part.

7011. "Inurnment" means placing cremated remains in a cremated remains container suitable for placement, burial, or shipment.


7011.2. "Placement" means the placing of a container holding cremated remains in a crypt, vault, or niche.


7012. "Entombment" means the process of placing human remains in a crypt or vault.


7013. "Burial" means the process of placing human remains in a grave.

7014. "Grave" means a space of earth in a burial park, used, or intended to be used, for the disposition of human remains.


7015. "Crypt" or "vault" means a space in a mausoleum of sufficient size, used or intended to be used, to entomb uncremated human remains.

7016. "Niche" means a space in a columbarium used, or intended to be used, for the placement of cremated human remains.


7018. "Cemetery authority" includes cemetery association, corporation sole, limited liability company, or other person owning or controlling cemetery lands or property.


7019. "Cemetery corporation," "cemetery association," or "cemetery corporation or association," means any corporation now or hereafter organized which is or may be authorized by its articles to conduct any one or more or all of the businesses of a cemetery, but do not mean or include a corporation sole.


7020. "Cemetery business," "cemetery businesses," and "cemetery purposes" are used interchangeably and mean any and all business and purposes requisite to, necessary for, or incident to, establishing, maintaining, operating, improving, or conducting a cemetery, interring human remains, and the care, preservation, and embellishment of cemetery property, including, but not limited to, any activity or business designed for the benefit, service, convenience, education, or spiritual uplift of property owners or persons visiting the cemetery.

7021. "Directors" or "governing body" means the board of directors, board of trustees, or other policymaking body of a cemetery association.

7022. "Lot," "plot," or "interment plot" means space in a cemetery, used or intended to be used for the interment of human remains. Such terms include and apply to one or more than one adjoining graves, one or more than one adjoining crypts or vaults, or one or more than one adjoining niches.

7023. "Plot owner," "owner," or "lot proprietor," means any person in whose name an interment plot stands of record as owner, in the office of a cemetery authority.


7024. "Permit for Disposition of Human Remains" includes "burial permit" and is a permit, issued pursuant to law, for the interment, disinterment, removal, reinterment or transportation of human remains.

7025. "Disposition" means the interment of human remains within California, or the shipment outside of California, for lawful interment or scattering elsewhere, including release of remains pursuant to Section 103060.


Chapter 2. General Provisions

Ca Codes (hsc:7050.5-7055) Health And Safety Code Section 7050.5-7055



7050.5. (a) Every person who knowingly mutilates or disinters, wantonly disturbs, or willfully removes any human remains in or from any location other than a dedicated cemetery without authority of law is guilty of a misdemeanor, except as provided in Section 5097.99 of the Public Resources Code. The provisions of this subdivision shall not apply to any person carrying out an agreement developed pursuant to subdivision ( l) of Section 5097.94 of the Public Resources Code or to any person authorized to implement Section 5097.98 of the Public Resources Code. (b) In the event of discovery or recognition of any human remains in any location other than a dedicated cemetery, there shall be no further excavation or disturbance of the site or any nearby area reasonably suspected to overlie adjacent remains until the coroner of the county in which the human remains are discovered has determined, in accordance with Chapter 10 (commencing with Section 27460) of Part 3 of Division 2 of Title 3 of the Government Code, that the remains are not subject to the provisions of Section 27491 of the Government Code or any other related provisions of law concerning investigation of the circumstances, manner and cause of any death, and the recommendations concerning the treatment and disposition of the human remains have been made to the person responsible for the excavation, or to his or her authorized representative, in the manner provided in Section 5097.98 of the Public Resources Code. The coroner shall make his or her determination within two working days from the time the person responsible for the excavation, or his or her authorized representative, notifies the coroner of the discovery or recognition of the human remains. (c) If the coroner determines that the remains are not subject to his or her authority and if the coroner recognizes the human remains to be those of a Native American, or has reason to believe that they are those of a Native American, he or she shall contact, by telephone within 24 hours, the Native American Heritage Commission.


7051. Every person who removes any part of any 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 it or to dissect it, without authority of law, or written permission of the person or persons having the right to control the remains under Section 7100, or with malice or wantonness, has committed a public offense that is punishable by imprisonment in the state prison. This section shall not prohibit the removal of foreign materials, pacemakers, or prostheses from cremated remains by an employee of a licensed crematory prior to final processing of ashes. Dental gold or silver, jewelry, or mementos, to the extent that they can be identified, may be removed by the employee prior to final processing if the equipment is such that it will not process these materials. However, any dental gold and silver, jewelry, or mementos that are removed shall be returned to the urn or cremated remains container, unless otherwise directed by the person or persons having the right to control the disposition.

7051. Every person who removes any part of any 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 it or to dissect it, without authority of law, or written permission of the person or persons having the right to control the remains under Section 7100, or with malice or wantonness, has committed a public offense that is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. This section shall not prohibit the removal of foreign materials, pacemakers, or prostheses from cremated remains by an employee of a licensed crematory prior to final processing of ashes. Dental gold or silver, jewelry, or mementos, to the extent that they can be identified, may be removed by the employee prior to final processing if the equipment is such that it will not process these materials. However, any dental gold and silver, jewelry, or mementos that are removed shall be returned to the urn or cremated remains container, unless otherwise directed by the person or persons having the right to control the disposition.


7051.5. Every person who removes or possesses dental gold or silver, jewelry, or mementos from any human remains without specific written permission of the person or persons having the right to control those remains under Section 7100 is punishable by imprisonment in the state prison. The fact that residue and any unavoidable dental gold or dental silver, or other precious metals remain in the cremation chamber or other equipment or any container used in a prior cremation is not a violation of this section.


7051.5. Every person who removes or possesses dental gold or silver, jewelry, or mementos from any human remains without specific written permission of the person or persons having the right to control those remains under Section 7100 is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. The fact that residue and any unavoidable dental gold or dental silver, or other precious metals remain in the cremation chamber or other equipment or any container used in a prior cremation is not a violation of this section.

7052. (a) Every person who willfully mutilates, disinters, removes from the place of interment, or commits an act of sexual penetration on, or has sexual contact with, any remains known to be human, without authority of law, is guilty of a felony. This section does not apply to any person who, under authority of law, removes the remains for reinterment, or performs a cremation. (b) For purposes of this section, the following definitions apply: (1) "Sexual penetration" means the unlawful penetration of the vagina or anus, however slight, by any part of a person's body or other object, or any act of sexual contact between the sex organs of a person and the mouth or anus of a dead body, or any oral copulation of a dead human body for the purpose of sexual arousal, gratification, or abuse. (2) "Sexual contact" means any willful touching by a person of an intimate part of a dead human body for the purpose of sexual arousal, gratification, or abuse.


7052.5. Notwithstanding the provisions of Section 7052, cremated remains may be removed from the place of interment for disposition as provided in Section 7054.6 or for burial at sea as provided in Section 7117.

7053. Every person who arrests, attaches, detains, or claims to detain any human remains for any debt or demand, or upon any pretended lien or charge, or fails to release any human remains, the personal effects, or any certificate or permit required under Division 102 (commencing with Section 102100) that is in his or her possession or control forthwith upon the delivery of authorization for the release signed by the next of kin or by any person entitled to the custody of the remains, is guilty of a misdemeanor.


7054. (a) (1) Except as authorized pursuant to the sections referred to in subdivision (b), every person who deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor. (2) Every licensee or registrant pursuant to Chapter 12 (commencing with Section 7600) or Chapter 19 (commencing with Section 9600) of Division 3 of the Business and Professions Code and the agents and employees of the licensee or registrant, or any unlicensed person acting in a capacity in which a license from the Cemetery and Funeral Bureau is required, who, except as authorized pursuant to the sections referred to in subdivision (b), deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor that shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding ten thousand dollars ($10,000), or both that imprisonment and fine. (b) Cremated remains may be disposed of pursuant to Sections 7054.6, 7116, 7117, and 103060. (c) Subdivision (a) of this section shall not apply to the reburial of Native American remains under an agreement developed pursuant to subdivision ( l) of Section 5097.94 of the Public Resources Code, or implementation of a recommendation or agreement made pursuant to Section 5097.98 of the Public Resources Code.


7054.1. No cremated remains shall be removed from the place of cremation, nor shall there be any charge for the cremation, unless the cremated remains have been processed so that they are suitable for inurnment within a cremated remains container or an urn. Every contract for cremation services shall include specific written notification of the processing to the person having the right to control the disposition of the remains under Section 7100.


7054.3. Notwithstanding any other provision of law, a recognizable dead human fetus of less than 20 weeks uterogestation not disposed of by interment shall be disposed of by incineration.


7054.4. Notwithstanding any other provision of law, recognizable anatomical parts, human tissues, anatomical human remains, or infectious waste following conclusion of scientific use shall be disposed of by interment, incineration, or any other method determined by the state department to protect the public health and safety. As used in this section, "infectious waste" means any material or article which has been, or may have been, exposed to contagious or infectious disease.


7054.6. (a) Except as provided in subdivision (b), cremated remains may be removed in a durable container from the place of cremation or interment and kept in or on the real property owned or occupied by a person described in Section 7100 or any other person, with the permission of the person with the right to disposition, or the durable container holding the cremated remains may be kept in a church or religious shrine, if written permission of the church or religious shrine is obtained and there is no conflict with local use permit requirements or zoning laws, if the removal is under the authority of a permit for disposition granted under Section 103060. The placement, in any place, of six or more cremated remains under this section does not constitute the place a cemetery, as defined in Section 7003. (b) Notwithstanding any other provision of law, cremated remains may be placed in one or more keepsake urns. Keepsake urns shall be kept as authorized by the person or persons with the right to control disposition pursuant to Section 7100, provided that a permit for disposition of human remains pursuant to Section 103060 is issued by the local registrar for each keepsake urn designating the home address of each person receiving a keepsake urn and a permit fee pursuant to Section 103065 is paid. No keepsake urn shall be subject to Section 8345. For purposes of this section, a keepsake urn shall mean a closed durable container that will accommodate an amount of cremated remains not to exceed one cubic centimeter. (c) Prior to disposition of cremated remains, every licensee or registrant pursuant to Chapter 12 (commencing with Section 7600) or Chapter 19 (commencing with Section 9600) of Division 3 of the Business and Professions Code, and the agents and employees of the licensee or registrant shall do all of the following: (1) Remove the cremated remains from the place of cremation in a durable container. (2) Keep the cremated remains in a durable container. (3) Store the cremated remains in a place free from exposure to the elements. (4) Responsibly maintain the cremated remains.


7054.7. (a) Except with the express written permission of the person entitled to control the disposition of the remains, no person shall: (1) Cremate the remains of more than one person at the same time in the same cremation chamber, or introduce the remains of a second person into a cremation chamber until incineration of any preceding remains has been terminated and reasonable efforts have been employed to remove all fragments of the preceding remains. The fact that there is residue in the cremation chamber or other equipment or any container used in a prior cremation is not a violation of this section. (2) Dispose of or scatter cremated remains in a manner or in a location that the remains are commingled with those of another person. This paragraph shall not apply to the scattering of cremated remains at sea from individual containers or to the disposal in a dedicated cemetery of accumulated residue removed from a cremation chamber or other cremation equipment. (3) Place cremated or uncremated remains of more than one person in the same container or the same interment space. This paragraph shall not apply to the following: (A) Interment of members of the same family in a common container designed for the cremated remains of more than one person. (B) Interment in a space or container that has been previously designated at the time of sale as being intended for the interment of remains of more than one person. (C) Disposal in a dedicated cemetery of residue removed from a cremation chamber or other cremation equipment. (b) Written acknowledgement from the person entitled to control the disposition of the cremated remains shall be obtained by the person with whom arrangements are made for disposition of the remains on a form that includes, but is not limited to, the following information: "The human body burns with the casket, container, or other material in the cremation chamber. Some bone fragments are not combustible at the incineration temperature and, as a result, remain in the cremation chamber. During the cremation, the contents of the chamber may be moved to facilitate incineration. The chamber is composed of ceramic or other material which disintegrates slightly during each cremation and the product of that disintegration is commingled with the cremated remains. Nearly all of the contents of the cremation chamber, consisting of the cremated remains, disintegrated chamber material, and small amounts of residue from previous cremations, are removed together and crushed, pulverized, or ground to facilitate inurnment or scattering. Some residue remains in the cracks and uneven places of the chamber. Periodically, the accumulation of this residue is removed and interred in a dedicated cemetery property, or scattered at sea." The acknowledgment shall be filed and retained, for at least five years, by the person who disposes of or inters the remains. (c) Any person, including any corporation or partnership, knowingly violating any provision of this section is guilty of a misdemeanor.


7055. (a) Every person, who for himself or herself or for another person, inters or incinerates a body or permits the same to be done, or removes any remains, other than cremated remains, from the primary registration district in which the death or incineration occurred or the body was found, except a removal by a funeral director in a funeral director's conveyance or an officer of a duly accredited medical college engaged in official duties with respect to the body of a decedent who has willfully donated his or her body to the medical college from that registration district or county to another registration district or county, or within the same registration district or county, without the authority of a burial or removal permit issued by the local registrar of the district in which the death occurred or in which the body was found; or removes interred human remains from the cemetery in which the interment occurred, or removes cremated remains from the premises on which the cremation occurred without the authority of a removal permit is guilty of a misdemeanor and punishable as follows: (1) For the first offense, by a fine of not less than ten dollars ($10) nor more than five hundred dollars ($500). (2) For each subsequent offense, by a fine of not less than fifty dollars ($50) nor more than five hundred dollars ($500) or imprisonment in the county jail for not more than 60 days, or by both. (b) Notwithstanding subdivision (a), a funeral director of a licensed out-of-state funeral establishment may transport human remains out of this state without a removal permit when he or she is acting within the requirements specified in subdivision (b) of Section 103050.


Chapter 3. Custody, And Duty Of Interment

Ca Codes (hsc:7100-7117) Health And Safety Code Section 7100-7117



7100. (a) The right to control the disposition of the remains of a deceased person, 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 pursuant to Section 7100.1, vests in, and the duty of disposition and the liability for the reasonable cost of disposition of the remains devolves upon, the following in the order named: (1) An agent under a power of attorney for health care who has the right and duty of disposition under Division 4.7 (commencing with Section 4600) of the Probate Code, except that the agent is liable for the costs of disposition only in either of the following cases: (A) Where the agent makes a specific agreement to pay the costs of disposition. (B) Where, in the absence of a specific agreement, the agent makes decisions concerning disposition that incur costs, in which case the agent is liable only for the reasonable costs incurred as a result of the agent's decisions, to the extent that the decedent's estate or other appropriate fund is insufficient. (2) The competent surviving spouse. (3) The sole surviving competent adult child of the decedent, or if there is more than one competent adult child of the decedent, the majority of the surviving competent adult children. However, less than the majority of the surviving competent adult children shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving competent adult children of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult children. (4) The surviving competent parent or parents of the decedent. If one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving competent parent. (5) The sole surviving competent adult sibling of the decedent, or if there is more than one surviving competent adult sibling of the decedent, the majority of the surviving competent adult siblings. However, less than the majority of the surviving competent adult siblings shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving competent adult siblings of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult siblings. (6) The surviving competent adult person or persons respectively in the next degrees of kinship, or if there is more than one surviving competent adult person of the same degree of kinship, the majority of those persons. Less than the majority of surviving competent adult persons of the same degree of kinship shall be vested with the rights and duties of this section if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kinship of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult persons of the same degree of kinship. (7) The public administrator when the deceased has sufficient assets. (b) (1) If any person to whom the right of control has vested pursuant to subdivision (a) has been charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death and those charges are known to the funeral director or cemetery authority, the right of control is relinquished and passed on to the next of kin in accordance with subdivision (a). (2) If the charges against the person are dropped, or if the person is acquitted of the charges, the right of control is returned to the person. (3) Notwithstanding this subdivision, no person who has been charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death to whom the right of control has not been returned pursuant to paragraph (2) shall have any right to control disposition pursuant to subdivision (a) which shall be applied, to the extent the funeral director or cemetery authority know about the charges, as if that person did not exist. (c) A funeral director or cemetery authority shall have complete authority to control the disposition of the remains, and to proceed under this chapter to recover usual and customary charges for the disposition, when both of the following apply: (1) Either of the following applies: (A) The funeral director or cemetery authority has knowledge that none of the persons described in paragraphs (1) to (6), inclusive, of subdivision (a) exists. (B) None of the persons described in paragraphs (1) to (6), inclusive, of subdivision (a) can be found after reasonable inquiry, or contacted by reasonable means. (2) The public administrator fails to assume responsibility for disposition of the remains within seven days after having been given written notice of the facts. Written notice may be delivered by hand, U.S. mail, facsimile transmission, or telegraph. (d) The liability for the reasonable cost of final disposition devolves jointly and severally upon all kin of the decedent in the same degree of kinship and upon the estate of the decedent. However, if a person accepts the gift of an entire body under subdivision (a) of Section 7155.5, that person, subject to the terms of the gift, shall be liable for the reasonable cost of final disposition of the decedent. (e) This section shall be administered and construed to the end that the expressed instructions of the decedent or the person entitled to control the disposition shall be faithfully and promptly performed. (f) A funeral director or cemetery authority shall not be liable to any person or persons for carrying out the instructions of the decedent or the person entitled to control the disposition. (g) For purposes of this section, "adult" means an individual who has attained 18 years of age, "child" means a natural or adopted child of the decedent, and "competent" means an individual who has not been declared incompetent by a court of law or who has been declared competent by a court of law following a declaration of incompetence.


7100.1. (a) A decedent, prior to death, may direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided. Unless there is a statement to the contrary that is signed and dated by the decedent, the directions may not be altered, changed, or otherwise amended in any material way, except as may be required by law, and shall be faithfully carried out upon his or her death, provided both of the following requirements are met: (1) the directions set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and, (2) arrangements for payment through trusts, insurance, commitments by others, or any other effective and binding means, have been made, so as to preclude the payment of any funds by the survivor or survivors of the deceased that might otherwise retain the right to control the disposition. (b) In the event arrangements for only one of either the cost of interment or the cost of the funeral goods and services are made pursuant to this section, the remaining wishes of the decedent shall be carried out only to the extent that the decedent has sufficient assets to do so, unless the person or persons that otherwise have the right to control the disposition and arrange for funeral goods and services agree to assume the cost. All other provisions of the directions shall be carried out. (c) If the directions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.


7101. When any decedent leaves an estate in this state, the reasonable cost of interment and an interment plot of sufficient size to constitute a family plot and memorial including reasonable sums for either, or both, general and special endowment care of the plot proportionate to the value of the estate and in keeping with the standard of living adopted by the decedent prior to his demise, together with interest thereon from 60 days after the date of death, shall be considered as a part of the funeral expenses of the decedent and shall be paid as a preferred charge against his estate as provided in the Probate Code. Reasonable costs of funeral services, together with interest thereon from 60 days after the date of death, shall be considered as a part of the funeral expenses of the decedent and shall be paid as a preferred charge against his estate as provided in the Probate Code. If a claim for mortuary and funeral services, an interment plot or memorial is rejected the burden of proving that the cost of the funeral service, interment plot or memorial is disproportionate to the value of the estate and the standard of living adopted by the decedent while living shall be upon the executor or administrator rejecting the claim. This chapter does not prohibit any relative or friend of a decedent from assuming the duty or paying the expense of interment or the funeral services.


7102. When a person is charged by law with the duty of interment he is entitled to the custody of the remains for the purpose of interment or, with respect to cremated remains, for the purpose of burial at sea in accordance with the provisions of this division; except that in any case where a coroner is required by law to investigate the cause of death, the coroner is entitled to the custody of the remains of the person whose death is the subject of investigation until the conclusion of the autopsy or medical investigation by the coroner. Any person in whose possession such remains are found, shall, upon demand by the coroner, surrender such remains to him.


7103. (a) Every person, upon whom the duty of interment is imposed by law, who omits to perform that duty within a reasonable time is guilty of a misdemeanor. (b) Every licensee or registrant pursuant to Chapter 12 (commencing with Section 7600) or Chapter 19 (commencing with Section 9600) of Division 3 of the Business and Professions Code, and the agents and employees of the licensee or registrant, or any unlicensed person acting in a capacity in which a license from the Cemetery and Funeral Bureau is required, upon whom the duty of interment is imposed by law, who omits to perform that duty within a reasonable time is guilty of a misdemeanor that shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding ten thousand dollars ($10,000), or both that imprisonment and fine. (c) In addition, any person, registrant, or licensee described in subdivision (a) or (b) is liable to pay the person performing the duty in his or her stead treble the expenses incurred by the latter in making the interment, to be recovered in a civil action.


7104. (a) When no provision is made by the decedent, or where the estate is insufficient to provide for interment and the duty of interment does not devolve upon any other person residing in the state or if such person can not after reasonable diligence be found within the state the person who has custody of the remains may require the coroner of the county where the decedent resided at time of death to take possession of the remains and the coroner shall inter the remains in the manner provided for the interment of indigent dead. (b) A county exercising jurisdiction over the death of an individual pursuant to Section 27491, or who assumes jurisdiction pursuant to Section 27491.55 of the Government Code, shall be responsible for the disposition of the remains of that decedent. If the decedent is an indigent, the costs associated with disposition of the remains shall be borne by the county exercising jurisdiction.


7104.1. If, within 30 days after the coroner notifies or diligently attempts to notify the person responsible for the interment of a decedent's remains which are in the possession of the coroner, the person fails, refuses, or neglects to inter the remains, the coroner may inter the remains. The coroner may recover any expenses of the interment from the responsible person.


7105. (a) If the person or persons listed in paragraphs (1), (3), (4), (5), and (6) of subdivision (a) of Section 7100 that would otherwise have the right to control the disposition and arrange for funeral goods and services fails to act, or fails to delegate his or her authority to act to some other person within seven days of the date when the right and duty devolves upon the person or persons, or in the case of a person listed in paragraph (2) of subdivision (a) of Section 7100, within 10 days of the date when the right and duty devolves upon the person, the right to control the disposition and arrange for funeral goods and services shall be relinquished and passed on to the person or persons of the next degree of kinship in accordance with subdivision (a) of Section 7100. (b) If the person or persons listed in paragraphs (1), (3), (4), (5), and (6) of subdivision (a) of Section 7100 that would otherwise have the right to control the disposition and arrange for funeral goods and services cannot be found within seven days of the date when the right and duty devolves upon the person or persons, or in the case of a person listed in paragraph (2) of subdivision (a) of Section 7100, within 10 days of the date when the right and duty devolves upon the person, after reasonable inquiry, the right to control the disposition and arrange for funeral goods and services shall be relinquished and passed on to the person or persons of the next degree of kinship in accordance with subdivision (a) of Section 7100. (c) If any persons listed in paragraphs (1), (3), (4), (5), and (6), of subdivision (a) of Section 7100 that would otherwise have equal rights to control the disposition and arrange for funeral goods and services fail to agree on disposition and funeral goods and services to be provided within seven days of the date on which the right and duty of disposition devolved upon the persons, a funeral establishment or a cemetery authority having possession of the remains, or any person who has equal right to control the disposition of the remains may file a petition in the superior court in the county in which the decedent resided at the time of his or her death, or in which the remains are located, naming as a party to the action those persons who would otherwise have equal rights to control the disposition and seeking an order of the court determining, as appropriate, who among those parties will have the control of disposition and to direct that person to make interment of the remains. The court, at the time of determining the person to whom the right of disposition will vest, shall, from the remaining parties to the action, establish an alternate order to whom the right to control disposition will pass if the person vested with the right to control disposition fails to act within seven days. (d) If the person vested with the duty of interment has criminal charges pending against him or her for the unlawful killing of the decedent, in violation of Section 187 of, or subdivision (a) or (b) of Section 192 of, the Penal Code, the person or persons with the next highest priority prescribed by Section 7100 may petition a court of competent jurisdiction for an order for control of the disposition of the decedent's remains. For this purpose, it shall be conclusively presumed that the petitioner is the person entitled to control the disposition of the remains if the petitioner is next in the order of priority specified in Section 7100.


7106. A cemetery authority may seek an order providing for the interment of the remains of one or more decedents. Where a proceeding is commenced involving the remains of more than one decedent the allegations of the petition shall separately state the facts as to each, and the court may make a separate order as to each.


7107. Notice of the time and place of the hearing on the petition shall be given as the court may direct. Upon the hearing the court shall make its order providing for the interment of the remains in such manner, at such time, and at such place as the court may determine to be just and proper, and for the best interests of the public health.


7108. If the coroner is directed to make such interment he shall make it in the manner provided by law for the interment of the indigent dead.

7109. The court shall allow costs and reasonable attorney's fees to a prevailing plaintiff against all defendants, other than the coroner.

7110. Any person signing any authorization for the interment or cremation of any remains warrants the truthfulness of any fact set forth in the authorization, the identity of the person whose remains are sought to be interred or cremated, and his or her authority to order interment or cremation. He or she is personally liable for all damage occasioned by or resulting from breach of such warranty.


7111. A cemetery authority or crematory may make an interment or cremation of any remains upon the receipt of a written authorization of a person representing himself or herself to be a person having the right to control the disposition of the remains pursuant to Section 7100. A cemetery authority or crematory is not liable for cremating, making an interment, or for other disposition of remains permitted by law, pursuant to that authorization, unless it has actual notice that the representation is untrue.


7112. No action shall lie against any cemetery authority relating to the cremated remains of any person which have been left in its possession for a period of one year, unless a written contract has been entered into with the cemetery authority for their care or unless permanent interment has been made. No licensed funeral director shall be liable in damages for the lawful disposition of any cremated human remains.


7113. A cemetery authority or licensed funeral director or a licensed hospital or its authorized personnel may permit or assist, and a physician may perform, an autopsy of any remains in its or his custody if the decedent, prior to his death, authorizes an autopsy in his will or other written instrument, or upon the receipt of a written authorization, telegram, or a verbal authorization obtained by telephone and recorded on tape or other recording device, from a person representing himself to be any of the following: (a) The surviving spouse; (b) a surviving child or parent; (c) a surviving brother or sister; (d) any other kin or person who has acquired the right to control the disposition of the remains; (e) a public administrator; (f) a coroner or any other duly authorized public officer. A cemetery authority or a licensed funeral director or a licensed hospital or its authorized personnel is not liable for permitting or assisting, and a physician is not liable for performing, an autopsy pursuant to such authorization unless he or it has actual notice that such representation is untrue at the time the autopsy is performed. If such authorization is contained in a will, the autopsy may be performed regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date. This section shall not authorize the obtaining of a verbal authorization by telephone and recorded on tape or other recording device for an autopsy of a deceased person if it is made known to the physician who is to perform the autopsy that the deceased was, at the time of his death, a member of a religion, church, or denomination which relies solely upon prayer for the healing of disease.


7114. Any person who performs, permits or assists at, an autopsy on a dead body without having first obtained (a) the authorization of the deceased in writing, including, but not limited to, the last will of the deceased; or (b) the authorization in writing of the person designated by Section 7100 of this code as having the right to control the disposition of the remains of the deceased; or (c) in the case of a cemetery authority or a licensed funeral director or a licensed hospital or its agents or a physician, the written or verbal authorization described in Section 7113 or 7151.6 of this code, is guilty of a misdemeanor, except that this section shall not be applicable to the performance of an autopsy by the coroner or other officer authorized by law to perform autopsies.


7116. Cremated remains may be scattered in areas where no local prohibition exists, provided that the cremated remains are not distinguishable to the public, are not in a container, and that the person who has control over disposition of the cremated remains has obtained written permission of the property owner or governing agency to scatter on the property. A state or local agency may adopt an ordinance, regulation, or policy, as appropriate, authorizing, consistent with this section, or specifically prohibiting, the scattering of cremated human remains on lands under the agency's jurisdiction. The scattering of the cremated remains of more than one person in one location pursuant to this section shall not create a cemetery pursuant to Section 7003 or any other provision of law.


7117. (a) Cremated remains may be taken by boat from any harbor in this state, or by air, and scattered at sea. Cremated remains shall be removed from their container before the remains are scattered at sea. (b) Any person who scatters at sea, either from a boat or from the air, any human cremated remains shall, file with the local registrar of births and deaths in the county nearest the point where the remains were scattered, a verified statement containing the name of the deceased person, the time and place of death, the place at which the cremated remains were scattered, and any other information that the local registrar of births and deaths may require. The first copy of the endorsed permit shall be filed with the local registrar of births and deaths within 10 days of disposition. The third copy shall be returned to the office of issuance. (c) For purposes of this section, the phrase "at sea" includes the inland navigable waters of this state, exclusive of lakes and streams, provided that no such scattering may take place within 500 yards of the shoreline. Nothing in this section shall be construed to allow the scattering of cremated human remains from a bridge or pier. (d) Notwithstanding any other provision of this code, the cremated remains of a deceased person may be scattered at sea as provided in this section and Section 103060.


Chapter 3.55. Organ And Tissue Donation Information And Procedures

Ca Codes (hsc:7158-7158.3) Health And Safety Code Section 7158-7158.3



7158. (a) The Controller shall prepare, or cause to be prepared, an organ donor information brochure for insertion in all payroll warrants issued by the Controller for the March 1999 pay period, and for every March pay period thereafter, in recognition of National Organ and Tissue Awareness Week, which occurs in April of each year. (b) In lieu of developing an organ donor brochure pursuant to subdivision (a), the Controller may use a brochure developed by a regional organ donor organization. The Controller shall screen for appropriateness for wide distribution.


7158.1. (a) As a part of its ongoing audit and review process, the Licensing and Certification Division of the State Department of Health Services shall audit for the existence of organ and tissue procurement procedures for all inpatient hospital facilities. The audit shall include a determination of whether these procedures are in place in the facility, whether the procedures are operational and functioning, and whether the procedures are being used. The department shall not be required to audit for the effectiveness of the procedures. No additional audits shall be required for purposes of this section. Instead, the department shall add an organ and tissue audit element to its regular ongoing audits of inpatient facilities. (b) For purposes of this chapter, "organ and tissue procurement procedures" shall include protocols required to be developed pursuant to Section 7184. The audit criteria shall, at a minimum, include all of the following: (1) That the protocols have been developed. (2) That the protocols are operational. (3) That notification requirements to next of kin or other individuals as set forth in Section 7151 and to organ procurement organizations are within a timeframe that is consistent with the maintenance of the organs for the purpose of transplantation. (c) The absence of any of the required organ and tissue procurement procedures at any facility shall be noted by the division, and included in a written audit report or site review summary. In the event that an audit or facility review is conducted in conjunction with review by a national accreditation agency, and that agency prepares a report, the department shall request that the information required by this section with respect to organ and tissue procurement procedures be included in the report prepared by the national accreditation agency. In this event, the department shall not be required to prepare a separate report.


7158.2. Every health care service plan contract that is issued, amended, delivered, or renewed on or after July 1, 1999, shall provide, upon enrollment and annually thereafter, a notice to subscribers in the evidence of coverage, health plan newsletter, or any direct plan communication to subscribers, information regarding organ donation options. This notice shall inform subscribers of the societal benefits of organ donations and the method whereby they may elect to be an organ or tissue donor.


7158.3. (a) The following definitions shall apply for purposes of this section: (1) "Cosmetic surgery" means surgery that is performed to alter or reshape normal structures of the body in order to improve appearance. (2) "Donee" means a hospital, as defined in subdivision (f) of Section 7150.1, or an organ procurement organization, as defined in subdivision (j) of Section 7150.1, or a tissue bank licensed pursuant to Chapter 4.1 (commencing with Section 1635) of Division 2. (3) "Reconstructive surgery" means surgery performed to correct or repair abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease to do either of the following: (A) To improve function. (B) To create a normal appearance, to the extent possible. (b) For purposes of accepting anatomical gifts, as defined in subdivision (a) of Section 7150.1, a donee shall do all of the following: (1) Revise existing informed consent forms and procedures to advise a donor or, if the donor is deceased, the donor's representative, that tissue banks work with both nonprofit and for-profit tissue processors and distributors, that it is possible that donated skin may be used for cosmetic or reconstructive surgery purposes, and that donated tissue may be used for transplants outside of the United States. (2) The revised consent form or procedure shall separately allow the donor or donor's representative to withhold consent for any of the following: (A) Donated skin to be used for cosmetic surgery purposes. (B) Donated tissue to be used for applications outside of the United States. (C) Donated tissue to be used by for-profit tissue processors and distributors. (3) A donee shall be deemed to have complied with paragraph (2) by designating tissue that has been donated with specific restrictions on its use. Once the donee transfers the tissue to a separate entity, the donee's responsibility for compliance with any restrictions on the tissue ceases. (4) The donor may recover, in a civil action against any individual or entity that fails to comply with this subdivision, civil penalties to be assessed in an amount not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000), plus court costs, as determined by the court. A separate penalty shall be assessed for each individual or entity that fails to comply with this subdivision. Any civil penalty provided under this paragraph shall be in addition to any license revocation or suspension, if appropriate, authorized under subdivision (c). (5) If the consent of the donor or donor's representative is obtained in writing, the donee shall offer to provide the donor or donor's representative with a copy of the completed consent form. If consent is obtained by telephone, the donee shall advise the donor or donor's representative that the conversation will be audio recorded for verification and enforcement purposes, and shall offer to provide the donor or donor's representative with a written copy of the recorded telephonic consent form. (c) Violation of this section by a licensed health care provider constitutes unprofessional conduct. (d) This section shall not apply to the removal of sperm or ova pursuant to Section 2260 of the Business and Professions Code.


Chapter 3.5. Uniform Anatomical Gift Act

Ca Codes (hsc:7150-7151.40) Health And Safety Code Section 7150-7151.40



7150. This chapter shall be known, and may be cited, as the Uniform Anatomical Gift Act.


7150.10. (a) As used in this chapter, the following terms have the following meanings: (1) "Adult" means an individual who is at least 18 years of age. (2) "Agent" means an individual who meets either of the following criteria: (A) He or she is authorized to make health care decisions on the principal's behalf by a power of attorney for health care. (B) He or she is expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal. (3) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education. (4) "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. The term includes a stillborn infant and, subject to restrictions imposed by law other than this chapter, a fetus. (5) "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. The term does not include a person to which an anatomical gift could pass under Section 7150.50. (6) "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement recorded on the Donate Life California Organ and Tissue Donor Registry or other donor registry. (6.5) "Domestic partner" means a person who is registered under Section 297 of the Family Code, or otherwise recognized under the law of any state as a domestic partner. (7) "Donor" means an individual whose body or part is the subject of an anatomical gift. (8) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts, including, but not limited to, the Donate Life California Organ and Tissue Donor Registry. (9) "Driver's license" means a license or permit issued by the Department of Motor Vehicles to operate a vehicle, whether or not conditions are attached to the license or permit. (10) "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes. (11) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem. (12) "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state. (13) "Identification card" means an identification card issued by the Department of Motor Vehicles. (14) "Know" means to have actual knowledge. (15) "Minor" means an individual who is under 18 years of age. (16) "Organ procurement organization" means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization. (17) "Parent" means a parent whose parental rights have not been terminated. (18) "Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body. (19) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. (20) "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state. (21) "Procurement organization" means an eye bank, organ procurement organization, or tissue bank. (22) "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal. (23) "Reasonably available" means able to be contacted by a procurement organization, without undue effort, and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift. (24) "Recipient" means an individual into whose body a decedent's part has been, or is intended to be, transplanted. (25) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (26) "Refusal" means a record created under Section 7150.30 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part. (27) "Sign" means, to do either of the following with the present intent to authenticate or adopt a record: (A) Execute or adopt a tangible symbol. (B) Attach to or logically associate with the record an electronic symbol, sound, or process. (28) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (29) "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an enucleator. (30) "Tissue" means a portion of the human body other than an organ or an eye. The term does not include blood, unless a blood sample is needed for the purpose of research or education. (31) "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue. (32) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients. (b) This chapter applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.


7150.15. Subject to Section 7150.35, an anatomical gift of a donor' s body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in Section 7150.20 by any of the following individuals: (a) The donor, if the donor is an adult or if the donor is a minor and is either of the following: (1) An emancipated minor. (2) Between 15 and 18 years of age, only upon the written consent of a parent or guardian. (b) An agent of the donor, provided that the power of attorney for health care or other record expressly permits the agent to make an anatomical gift.


7150.20. (a) A donor may make an anatomical gift through any of the following: (1) By authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card and included on a donor database registry. (2) Directly through the Donate Life California Organ and Tissue Donor Registry Internet Web site. (3) In a will. (4) During a terminal illness or injury of the donor, by any form of communication that clearly expresses the donor's wish, addressed to at least two adults, at least one of whom is a disinterested witness. The witnesses shall memorialize this communication in a writing and sign and date the writing. (5) As provided in subdivision (b). (b) A donor or other person authorized to make an anatomical gift under Section 7150.15 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol, indicating that the donor has made an anatomical gift, be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and shall comply with all of the following: (1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person. (2) State that it has been signed and witnessed as provided in paragraph (1). (c) Revocation, suspension, expiration, or cancellation of a driver's license or identification card upon which an anatomical gift is indicated does not invalidate the gift. (d) An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor's death does not invalidate the gift. (e) Notwithstanding subdivision (i) of Section 7150.65, a document of gift may designate a particular physician to carry out the recovery procedures. In the absence of this designation, or if the designee is not reasonably available or is deemed by the organ procurement organization not to be qualified to perform the required procedure, the organ procurement organization may authorize another physician or technician to carry out the recovery.


7150.25. (a) Subject to Section 7150.35, a donor or other person authorized to make an anatomical gift under Section 7150.15 may amend or revoke an anatomical gift by either of the following: (1) A record signed by any of the following and recorded in a donor registry database: (A) The donor. (B) The other person. (C) Subject to subdivision (b), another individual acting at the direction of the donor or of the other person, if the donor or other person is physically unable to sign. (2) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency. (b) A record signed pursuant to subparagraph (C) of paragraph (1) of subdivision (a) shall comply with all of the following: (1) It shall be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person. (2) It shall state that it has been signed and witnessed as provided in paragraph (1). (c) Subject to Section 7150.35, a donor or other person authorized to make an anatomical gift under Section 7150.15 may revoke an anatomical gift by the destruction of the document of gift or cancellation of the document of gift on a donor database registry, or the portion of the document of gift used to make the gift, with the intent to revoke the gift. (d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness. The witnesses shall memorialize this communication in a writing and sign and date the writing. (e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subdivision (a).


7150.30. (a) An individual may refuse to make an anatomical gift of the individual's body or part by any of the following: (1) A record signed by either of the following: (A) The individual. (B) Subject to subdivision (b), another individual acting at the direction of the individual if the individual is physically unable to sign. (2) The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death. (3) Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness. The witnesses shall memorialize this communication in a writing and sign and date the writing. (b) A record signed pursuant to subparagraph (B) of paragraph (1) of subdivision (a) shall comply with both of the following: (1) It shall be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual. (2) It shall state that it has been signed and witnessed as provided in paragraph (1). (c) An individual who has made a refusal may amend or revoke the refusal by any of the following: (1) In the manner provided in subdivision (a) for making a refusal. (2) By subsequently making an anatomical gift pursuant to Section 7150.20 that is inconsistent with the refusal. (3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal. (d) Except as otherwise provided in subdivision (h) of Section 7150.35, in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part. (e) Notwithstanding any provision to the contrary, including, but not limited to, Section 7150.40, only an individual shall make an anatomical gift of all or part of that individual's body or pacemaker, if it is made known that the individual, at the time of death, was a member of a religion, church, sect, or denomination that relies solely upon prayer for healing of disease or that has religious tenets that would be violated by the disposition of the human body or parts or pacemakers for the purposes of transplantation, therapy, research, or education.


7150.35. (a) Except as otherwise provided in subdivision (g) and subject to subdivision (f), in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under Section 7150.20 or an amendment to an anatomical gift of the donor's body or part under Section 7150.25. (b) A donor's revocation of an anatomical gift of the donor's body or part under Section 7150.25 is not a refusal and does not bar another person specified in Section 7150.15 or 7150.40 from making an anatomical gift of the donor's body or part under Section 7150.20 or 7150.45. (c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under Section 7150.20 or an amendment to an anatomical gift of the donor's body or part under Section 7150.25, another person may not make, amend, or revoke the gift of the donor's body or part under Section 7150.45. (d) A revocation of an anatomical gift of a donor's body or part under Section 7150.25 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under Section 7150.20 or 7150.45. (e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Section 7150.15, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person. (f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Section 7150.15, an anatomical gift of a part for one or more of the purposes set forth in Section 7150.15 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under Section 7150.20 or 7150.45. (g) Notwithstanding subdivision (a), an individual who is between 15 and 18 years of age may make an anatomical gift for any purpose authorized in this chapter, may limit an anatomical gift to one or more of those purposes, may refuse to make an anatomical gift, or may amend or revoke an anatomical gift, only upon the written consent of the parent or guardian. If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.


7150.40. (a) Subject to subdivisions (b) and (c), and unless barred by Section 7150.30 or 7150.35, an anatomical gift of a decedent's body or part for the purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the following order of priority: (1) An agent of the decedent at the time of death who could have made an anatomical gift under subdivision (b) of Section 7150.15 immediately before the decedent's death. (2) The spouse or domestic partner of the decedent. (3) Adult children of the decedent. (4) Parents of the decedent. (5) Adult siblings of the decedent. (6) Adult grandchildren of the decedent. (7) Grandparents of the decedent. (8) An adult who exhibited special care and concern for the decedent during the decedent's lifetime. (9) The persons who were acting as the guardians or conservators of the person of the decedent at the time of death. (10) (A) Any other person having the authority to dispose of the decedent's body, including, but not limited to, a coroner, medical examiner, or hospital administrator, provided that reasonable effort has been made to locate and inform persons listed in paragraphs (1) to (9), inclusive, of their option to make, or object to making, an anatomical gift. (B) Except in the case where the useful life of the part does not permit, a reasonable effort shall be deemed to have been made when a search for the persons has been underway for at least 12 hours. The search shall include a check of local police missing persons records, examination of personal effects, and the questioning of any persons visiting the decedent before his or her death or in the hospital, accompanying the decedent's body, or reporting the death, in order to obtain information that might lead to the location of any persons listed. (b) If there is more than one member of a class listed in paragraph (1), (3), (4), (5), (6), (7), or (9) of subdivision (a) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under Section 7150.50 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available. (c) A person shall not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subdivision (a) is reasonably available to make, or to object to the making of, an anatomical gift.


7150.45. (a) A person authorized to make an anatomical gift under Section 7150.40 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication. (b) Subject to subdivision (c), an anatomical gift by a person authorized under Section 7150.40 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under Section 7150.40 may be amended or revoked as follows: (1) Amended only if a majority of the reasonably available members agree to the amending of the gift. (2) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift. (c) A revocation under subdivision (b) is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.


7150.50. (a) An anatomical gift may be made to any of the following persons named in the document of gift: (1) A hospital, accredited medical school, dental school, college, university, or organ procurement organization, for research or education. (2) Subject to subdivision (b), an individual designated by the person making the anatomical gift if the individual is the recipient of the part. (3) An eye bank, or tissue bank. (b) If an anatomical gift to an individual under paragraph (2) of subdivision (a) cannot be transplanted into the individual, the part passes in accordance with subdivision (g) in the absence of an express, contrary indication by the person making the anatomical gift. (c) If an anatomical gift of one or more specific parts, or of all parts, is made in a document of gift that does not name a person described in subdivision (a) but identifies the purpose for which an anatomical gift may be used, all of the following rules shall apply: (1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank. (2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank. (3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ. (4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization. (d) For the purpose of subdivision (c), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education. (e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subdivision (a) and does not identify the purpose of the gift, the gift shall be used only for transplantation or therapy, and the gift passes in accordance with subdivision (g). (f) If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor," "organ donor," or "body donor," or by a symbol or statement of similar import, the gift may be used for transplantation, therapy, research, or education, and the gift passes in accordance with subdivision (g). (g) For purposes of subdivisions (b), (e), and (f) all of the following rules shall apply: (1) If the part is an eye, the gift passes to the appropriate eye bank. (2) If the part is tissue, the gift passes to the appropriate tissue bank. (3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ. (h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under paragraph (2) of subdivision (a), passes to the organ procurement organization as custodian of the organ. (i) If an anatomical gift does not pass pursuant to subdivisions (a) to (h), inclusive, or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part. (j) A person shall not accept an anatomical gift if the person knows that the gift was not effectively made under Section 7150.20 or 7150.45 or if the person knows that the decedent made a refusal under Section 7150.30 that was not revoked. For purposes of this subdivision, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift. (k) Except as otherwise provided in paragraph (2) of subdivision (a), nothing in this chapter affects the allocation of organs for transplantation or therapy.


7150.55. (a) All of the following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal: (1) A law enforcement officer, firefighter, paramedic, or other emergency rescuer finding the individual. (2) If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital. (b) If a document of gift or a refusal to make an anatomical gift is located by the search required by paragraph (1) of subdivision (a) and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital. (c) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section, but may be subject to administrative sanctions.

7150.60. (a) A document of gift need not be delivered during the donor's lifetime to be effective. (b) Upon or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under Section 7150.50.


7150.65. (a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Donate Life California Organ and Tissue Donor Registry and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift. (b) A procurement organization shall be allowed reasonable access to information in the records of the Donate Life California Organ and Tissue Donor Registry to ascertain whether an individual who is at or near death is a donor. Personally identifiable information on a donor registry about a donor shall not be used or disclosed without the express consent of the donor or the person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift. A procurement organization shall not sell the information obtained from the donor registry. A procurement organization shall also comply with all state and federal laws with respect to the protection of a donor's or prospective donor's personally identifiable information. (c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent. (d) Unless prohibited by law other than this chapter, at any time after a donor's death, the person to which a part passes under Section 7150.50 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose. (e) Unless prohibited by law other than this chapter, an examination under subdivision (c) or (d) may include an examination of all medical and dental records of the donor or prospective donor. (f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal. (g) Upon referral by a hospital under subdivision (a), a procurement organization shall make a reasonable search for any person listed in Section 7150.40 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information. (h) Subject to subdivision (i) of Section 7150.50, and Section 7151.20, the rights of the person to which a part passes under Section 7150.50 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this chapter, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation, and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under Section 7150.50, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation. (i) Except as provided in subdivision (e) of Section 7150.20, neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent. (j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

7150.70. Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.


7150.75. (a) Except as otherwise provided in subdivision (b), a person that, for valuable consideration, knowingly purchases or sells a part for transplantation or therapy, if removal of a part from an individual is intended to occur after the individual's death, is guilty of a felony and is subject to a fine not exceeding fifty thousand dollars ($50,000), or imprisonment not exceeding five years, or both the fine and imprisonment. (b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part.


7150.80. (a) A person that acts in accordance with this chapter or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action or criminal prosecution. (b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift. (c) In determining whether an anatomical gift has been made, amended, or revoked under this chapter, a person may rely upon representations of an individual listed in paragraphs (2) to (8), inclusive, of subdivision (a) of Section 7150.40 relating to the individual's relationship to the donor or prospective donor, unless the person knows that the representation is untrue.


7150.85. (a) A document of gift is valid if executed in accordance with any of the following: (1) This chapter. (2) The laws of the state or country where it was executed. (3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed. (b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift. (c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed, or that it was revoked.


7150.90. (a) The California organ procurement organizations designated pursuant to Section 273 and following Title 42 of the United States Code, are hereby authorized to establish a not-for-profit entity that shall be designated the California Organ and Tissue Donor Registrar, which shall establish and maintain the California Organ and Tissue Donor Registry, to be known as the Donate Life California Organ and Tissue Donor Registry. The registry shall contain information regarding persons who have identified themselves as organ and tissue donors upon their death. The registrar shall be responsible for developing methods to increase the number of donors who enroll in the registry. (b) The registrar shall make available to the federally designated organ procurement organizations (OPOs) in California and the state licensed tissue and eye banks information contained in the registry regarding potential donors on a 24-hour-a-day, seven-day-a-week basis. This information shall be used to expedite a match between identified organ and tissue donors and potential recipients. (c) The registrar may receive voluntary contributions to support the registry and its activities. (d) The registrar shall submit an annual written report to the State Public Health Officer and the Legislature that includes all of the following: (1) The number of donors on the registry. (2) The changes in the number of donors on the registry. (3) The general characteristics of donors as may be determined by information provided on the donor registry forms pursuant to Sections 12811 and 13005 of the Vehicle Code.


7151.10. (a) As used in this section the following terms have the following meanings: (1) "Advance health care directive" means a power of attorney for health care or a record signed by a prospective donor containing the prospective donor's direction concerning a health care decision for the prospective donor. (2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life-support system may be withheld or withdrawn from the prospective donor. (3) "Health care decision" means any decision made regarding the health care of the prospective donor. (b) If a prospective donor has a declaration or advance health care directive and the terms of the declaration or directive and the express or implied terms of a potential anatomical gift are in conflict with regard to the administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, the prospective donor's attending physician and prospective donor shall confer to resolve the conflict. If the prospective donor is incapable of resolving the conflict, an agent acting under the prospective donor's declaration or directive, or, if none, or the agent is not reasonably available, another person authorized by law other than this chapter to make health care decisions on behalf of the prospective donor, shall act for the donor to resolve the conflict. The conflict shall be resolved as expeditiously as possible. Information relevant to the resolution of the conflict may be obtained from the appropriate procurement organization and any other person authorized to make an anatomical gift for the prospective donor under Section 7150.40. Before resolution of the conflict, measures necessary to ensure the medical suitability of the part shall not be withheld or withdrawn from the prospective donor if withholding or withdrawing the measures is not contraindicated by appropriate end-of-life care.


7151.15. (a) A county coroner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education. (b) If a county coroner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the coroner and a post mortem examination is going to be performed, unless the coroner denies recovery in accordance with Section 7151.20, the coroner or designee shall conduct a post mortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift. (c) A part shall not be removed from the body of a decedent under the jurisdiction of a coroner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the coroner shall not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subdivision does not preclude a coroner from performing the medico legal investigation upon the body or parts of a decedent under the jurisdiction of the coroner.

7151.20. (a) On request from a qualified procurement organization, the county coroner may permit the removal of organs that constitute an anatomical gift from a decedent who died under circumstances requiring an inquest by the coroner. (b) If no autopsy is required, the organs to be removed may be released to the qualified procurement organization. (c) If an autopsy is required and the county coroner determines that the removal of the organs will not interfere with the subsequent course of an investigation or autopsy, the organs may be released for removal. The autopsy shall be performed following the removal of the organs. (d) If a county coroner is considering withholding one or more organs of a potential donor for any reason, the county coroner, or his or her designee, upon request from a qualified organ procurement organization, shall be present during the procedure to remove the organs. The county coroner, or his or her designee, may request a biopsy of those organs or deny removal of the organs if necessary. If the county coroner, or his or her designee, denies removal of the organs, the county coroner may do any of the following: (1) In the investigative report, explain in writing the reasons for the denial. (2) Provide the explanation to the qualified organ procurement organization. (e) If the county coroner, or his or her designee, is present during the removal of the organs, the qualified procurement organization requesting the removal of the organ shall reimburse the county of the coroner, or his or her designee, for the actual costs incurred in performing the duty specified in subdivision (d), if reimbursement is requested by the county coroner. The payment shall be applied to the additional costs incurred by the county coroner's office in performing the duty specified in subdivision (d). (f) The health care professional removing organs from a decedent who died under circumstances requiring an inquest shall file with the county coroner a report detailing the condition of the organs removed and their relationship, if any, to the cause of death.


7151.25. In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.


7151.30. This act modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act (15 U.S.C. Sec. 7001 et seq.), but does not modify, limit or supersede Section 101(a) of that act (15 U.S.C. Sec. 7001), or authorize electronic delivery of any of the notices described in Section 103(b) of that act (15 U.S.C. Sec. 7003(b)).


7151.35. (a) No hospital, physician and surgeon, procurement organization, or other person shall determine the ultimate recipient of an anatomical gift based upon a potential recipient's physical or mental disability, except to the extent that the physical or mental disability has been found by a physician and surgeon, following a case-by-case evaluation of the potential recipient, to be medically significant to the provision of the anatomical gift. (b) Subdivision (a) shall apply to each part of the organ transplant process. The organ transplant process includes, but is not limited to, all of the following: (1) The referral from a primary care provider to a specialist. (2) The referral from a specialist to a transplant center. (3) The evaluation of the patient for the transplant by the transplant center. (4) The consideration of the patient for placement on the official waiting list. (c) A person with a physical or mental disability shall not be required to demonstrate postoperative independent living abilities in order to have access to a transplant if there is evidence that the person will have sufficient, compensatory support and assistance. (d) The court shall accord priority on its calendar and handle expeditiously any action brought to seek any remedy authorized by law for purposes of enforcing compliance with this section. (e) This section shall not be deemed to require referrals or recommendations for, or the performance of, medically inappropriate organ transplants. (f) As used in this section "disabilities" has the same meaning as used in the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq., P.L. 101-336).


7151.40. (a) If there has been an anatomical gift, a technician may remove any donated parts and an enucleator may remove any donated eyes or parts of eyes, after determination of death by a physician and surgeon. (b) Following the final disposition of the remains of the donor, upon request of a person specified in Section 7100, the donee shall return the cremated remains of the donor at no cost to the person specified in Section 7100, unless the donor has previously designated otherwise in the document of gift. A person who knowingly returns the cremated remains of a person other than the donor to a person specified in Section 7100 shall be punished by imprisonment in the county jail for not more than one year. (c) Residual anatomical materials and human remains donated to hospitals, organ procurement organizations, accredited medical schools, dental schools, colleges, or universities for educational, research, transplantation, or therapeutic use that are no longer useful or needed for those purposes, may be disposed of by those entities through cremation, in the same manner as medical waste, and without additional burial permit requirements if the donor has specifically waived subdivision (b) of Section 7151.40.


Chapter 3.56. Altruistic Living Donor Registry Act

Ca Codes (hsc:7152-7152.2) Health And Safety Code Section 7152-7152.2



7152. This chapter shall be known, and may be cited, as the Altruistic Living Donor Registry Act of 2010.


7152.1. (a) The Legislature finds and declares all of the following: (1) More than 20,000 Californians are currently waiting for a lifesaving organ transplant, and over 17,000 of those individuals are waiting for a kidney transplant. Based on the current trend in organ donations, one in three of those waiting for a transplant will die. In 2009, 5,874 Americans died while waiting for a transplant. (2) On a national level, the number of organ donors increased by 3 percent from the years 2008 to 2009, while the number of organ donors in California decreased by 2 percent during this same time period. In 2009, there were only 798 cadaveric donors and 734 living donors in California. (3) A decrease in organ donors results in longer stays on the national organ transplant waiting list and, consequently, more deaths among those patients who are waiting. (4) The national organ transplant waiting list, which is maintained by the United Network for Organ Sharing, is growing at the rate of approximately 40,000 persons per year. A name is added to this national database every 13 minutes. (5) Since 2005, more than six million Californians have registered to donate their organs and tissue upon death. (6) However, no registry exists in California for those individuals who wish to be an altruistic living organ donor. (b) The use of anatomical gifts, and the donation of organs for the purpose of transplantation, are of great value to the citizens of California and may save or prolong the life, or improve the health of, extremely ill and dying individuals. (c) It is the intent of the Legislature to increase the number of individuals who identify themselves as potential organ donors. It is further the intent of the Legislature to establish a statewide Altruistic Living Donor Registry to expedite the match between organ donors and recipients and to encourage charitable contributions to support the registry.


7152.2. (a) The California organ procurement organizations designated pursuant to Section 273 and following of Title 42 of the United States Code, are hereby authorized to establish a not-for-profit entity that shall be designated the Altruistic Living Donor Registrar, which shall establish and maintain the Altruistic Living Donor Registry. The registry shall contain information regarding persons who have identified themselves as altruistic living kidney donors. The donor registry shall be designed to promote and assist live kidney donations, including donor chains, paired exchanges, and nondirected donations. The registrar shall be responsible for developing methods to increase the number of donors who enroll in the registry. (b) The registrar shall make available to the federally designated organ procurement organizations (OPOs) and transplant centers in California information contained in the registry regarding potential altruistic living donors. This information shall be used to expedite a match between identified organ donors and potential recipients. (c) The registrar may receive voluntary contributions to support the registry and its activities. (d) The registrar shall collect and make all of the following information relating to altruistic kidney donations available to the public: (1) The number of donors on the registry. (2) The changes in the number of donors on the registry. (3) The general characteristics of donors. (e) The registrar may also authorize the registry to include persons who identify themselves as altruistic living donors of organs and tissue other than kidneys to be added to the registry, upon a finding by the Federal Centers for Medicare and Medicaid Services and the United Network for Organ Sharing that the donation is generally regarded as safe and without a significant risk of complications, and would not adversely affect the health of the donor. Upon a finding pursuant to this subdivision, the registrar shall notify the appropriate policy committees of the Legislature.


Chapter 3.6. Organ Transplants

Ca Codes (hsc:7160) Health And Safety Code Section 7160



7160. (a) The State Department of Health Services shall consult with the Legislature on or before December 31, 1991, to evaluate and make recommendations to improve the effectiveness of organ transplantation for the general public and in minority communities and low-income communities in California. Data to be considered may include, but not be limited to: (1) The number of persons waiting for organ transplants. (2) The number of available organ donors. (3) The number of hospitals performing transplants and type of transplants. (4) The percentage of medically insured transplant recipients. (5) The percentage of Medi-Cal funded transplant recipients. (6) The waiting time for transplantation. (7) Factors used to determine eligibility for organ transplantation. (8) Referral rates of patients to transplant centers. (9) The number of persons accepted by transplant centers. (10) The cost of recovery, processing, and distribution of the donated organs. (11) The cost of transplantation operations. (12) The financial impact of an organ donation upon the donor and the donor's family. (13) Survival rates of patients receiving organ transplants. (14) Hospital compliance with Section 7184. (b) In compiling data, the department may utilize various sources, including, but not limited to, the local organ procurement organizations, the United Network for Organ Sharing, and the Association of Organ Procurement Organizations.


Chapter 3.7. Death

Article 1. Uniform Determination Of Death Act

Ca Codes (hsc:7180) Health And Safety Code Section 7180



7180. (a) An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. (b) This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it. (c) This article may be cited as the Uniform Determination of Death Act.


Article 2. Confirmation Of Death

Ca Codes (hsc:7181-7184.5) Health And Safety Code Section 7181-7184.5



7181. When an individual is pronounced dead by determining that the individual has sustained an irreversible cessation of all functions of the entire brain, including the brain stem, there shall be independent confirmation by another physician.


7182. When a part of the donor is used for direct transplantation pursuant to the Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section 7150)) and the death of the donor is determined by determining that the individual has suffered an irreversible cessation of all functions of the entire brain, including the brain stem, there shall be an independent confirmation of the death by another physician. Neither the physician making the determination of death under Section 7155.5 nor the physician making the independent confirmation shall participate in the procedures for removing or transplanting a part.

7183. Complete patient medical records required of a health facility pursuant to regulations adopted by the department in accordance with Section 1275 shall be kept, maintained, and preserved with respect to the requirements of this chapter when an individual is pronounced dead by determining that the individual has sustained an irreversible cessation of all functions of the entire brain, including the brain stem.


7184. (a) Each general acute care hospital shall develop a protocol for identifying potential organ and tissue donors. The protocol shall require that any deceased individual's next of kin or other individual, as set forth in Section 7151, at or near the time of notification of death be asked whether the deceased was an organ donor or if the family is a donor family. If not, the family shall be informed of the option to donate organs and tissues pursuant to Chapter 3.5 (commencing with Section 7150) of Part 1 of Division 7. With the approval of the designated next of kin or other individual, as set forth in Section 7151, the hospital shall then notify an organ and tissue procurement organization and cooperate in the procurement of the anatomical gift or gifts. The protocol shall encourage reasonable discretion and sensitivity to the family circumstances in all discussions regarding donations of tissue or organs. The protocol may take into account the deceased individual's religious beliefs or obvious nonsuitability for organ and tissue donation. In the event an organ and tissue procurement organization does not exist in a region, the hospital shall contact an organ or a tissue procurement organization, as appropriate. Laws pertaining to notification of the coroner shall be complied with in all cases of reportable deaths. (b) A general acute care hospital shall comply with subdivision (a) or (c) as a condition of participation in the Medi-Cal program contained in Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code. (c) Notwithstanding subdivision (a), the protocol may alternately provide for the hospital to contact an organ and tissue procurement organization at the time a potential organ and tissue donor is identified, and for the trained personnel of the organ and tissue procurement organization to make the inquiries described in subdivision (a) of the deceased individual's next of kin or other individual as set forth in Section 7151.


7184.5. (a) In conjunction with entering into any agreement with any coroner or medical examiner for release and removal of organs from bodies within that official's custody and to further the purposes of Section 27491.45 of the Government Code, a procurement organization shall develop a protocol for organ recovery, as appropriate, that provides sufficient information on the medical and injury status of the deceased to permit release and removal of organs without undue prejudice to that official's investigation of, or inquiry into, the cause of death. (b) The protocol described in subdivision (a) shall be subject to approval by the coroner or medical examiner before release or removal of organs and shall provide for the following: (1) Relevant information on the deceased to be given to the coroner or deputy coroner at the time of the initial request for permission to recover internal organs, including, but not limited to: (A) Information identifying the deceased. (B) Date and time of pronouncement of brain death. (C) Name of procurement organizations and coordinator. (D) Organs requested. (E) Organ donor number and hospital. (F) Apparent cause and manner of death. (G) A brief description of alleged circumstances surrounding the death to the extent they are known at the time. (H) The law enforcement agency and the name of the investigating officer handling the case. (2) The following information, to be recorded by the organ procurement coordinator at the time of requesting permission for organ removal: (A) The name of the deputy coroner contacted. (B) The name of the pathologist contacted by the deputy coroner. (C) Whether permission for removal was obtained at the time, including the date and time if permission was obtained. (D) The coroner's case number assigned by the deputy coroner. (E) If the request for organ removal is refused, the reason given for the refusal. (3) A checklist to be completed prior to recovery of any organ by the procurement organization coordinator with the assistance, if necessary, of a physician attending the deceased, that includes, at a minimum, all of the following: (A) medical record review to insure documentation of external injuries, fractures, and internal injuries. (B) In cases of suspected child abuse, whether: (i) A child abuse consult was obtained. (ii) A computerized axial tomographic scan or magnetic resonance image of the head was obtained. (iii) A radiological skeletal survey was done. (iv) The presence or absence of visible injury to the back of the scalp, ears, nose, and mouth, or retinal hemorrhage has been documented. (v) A coagulation screen report was in the deceased's records. (C) A photographic record of visible external injuries. (D) Admitting blood sample, if available, and the date and time the sample was drawn. (4) A checklist of items to be provided to the coroner's office when the deceased's body is released after completion of organ recovery, including, but not limited to, all of the following: (A) A copy of the deceased's medical records. (B) Film documenting abnormal findings, if used. (C) The information recorded pursuant to the requirements of this subdivision. (D) A sample of the deceased's blood, if taken on admission. (5) A form, completed by the physician and surgeon, technician, or team performing the organ recovery procedure and signed by the physician and surgeon, that describes in sufficient detail all of the following: (A) Tests used to determine the suitability for transplantation of all organs recovered. (B) Documentation of injuries and other abnormalities, if any, noted or occurring during the organ recovery procedure. (C) The date and time organ recovery was started. (D) Any other information on the state of the deceased's body or organs that the physician and surgeon, technician, or team believes may assist the coroner in his or her investigation or inquiry. (c) The requirements of subdivision (a) shall not apply in any county that does not have a Level II trauma facility, as defined in Section 1798.160 and the regulations adopted pursuant thereto. (d) Notwithstanding any other provision of law, a health care provider may release the information described in this section to the procurement organization, the coroner, or the medical examiner. (e) For purposes of this section, "organ" or "organs" means internal whole organs, including, but not limited to, the heart, kidneys, the liver, and lungs, but does not include eyes, skin, or other similar tissue.


Chapter 4. Disposal Of Unclaimed Dead

Ca Codes (hsc:7200-7208) Health And Safety Code Section 7200-7208



7200. Every head of a public institution, city or county undertaker, or state, county, or city officer having charge or control of remains to be interred at public expense shall use due diligence to notify the relatives of the decedent. In the absence of any known relative of the decedent desiring to direct the disposition of the remains in a manner other than provided in this chapter, and upon written request of the state department that these notices are required for a definite period specified in the request, that officer shall notify the state department immediately after the lapse of twenty-four hours after death, stating, whenever possible, the name, age, sex, and cause of death of the decedent.


7201. The person in charge of a public institution in which the decedent was an inmate shall transmit upon request, to the state department or to any person designated by it, a brief medical history of the unclaimed dead for purpose of identification and permanent record, which records shall be open to inspection by any State or county official or prosecuting attorney.


7202. The unclaimed dead retained by the State department for scientific or educational purposes shall be embalmed and disposed of in accordance with the instructions of the State department. Such unclaimed dead shall be held for a period of thirty days by those to whom they may have been assigned for scientific or educational purposes, subject to claim and identification by any authenticated relative of the decedent for purpose of interment or other disposition in accordance with the directions of such relative.


7203. The bodies of the unclaimed dead retained by the State department shall be used solely for the purpose of instruction and study in the promotion of medical, chiropractic, and embalming education and science within the State.

7204. All persons receiving unclaimed dead for educational purposes shall bear all reasonable expense incurred in the preservation and transportation of the dead and shall keep a permanent record of bodies received, giving the identification number, the name, age, sex, nationality, and race, if possible, together with the place of last residence of the decedent and the source and disposition, with dates, of the body.


7205. It is unlawful for any person, unless specifically authorized by law, to hold a post mortem examination of any unclaimed dead without the express permission of the State department.


7206. Any person authorized by law to perform post mortem examinations shall permit, with the consent of relatives, or in the absence of such relatives, with the consent of the State department, any representative of the anatomical or pathological departments of an incorporated medical, chiropractic, or osteopathic school or college to obtain at the time of the necropsy, such material in a recent state as may be needed for scientific purposes, if the material is not required for the legal purposes of the State.


7207. Whenever, through the failure of any person to notify the State department, or promptly to deliver the body of a deceased indigent as required by the State department, such body becomes unfit for scientific or educational purposes, the State department shall so certify and the remains shall be interred at the expense of those guilty of such noncompliance.


7208. Every person who unlawfully disposes, uses, or sells the body of an unclaimed dead person, or who violates any provision of this chapter is guilty of a misdemeanor.


Chapter 5. Embalming And Transportation

Article 1. Embalming

Ca Codes (hsc:7300-7304) Health And Safety Code Section 7300-7304



7300. No person shall embalm the body of any person who has died from an unknown cause, except with the permission of the coroner.


7301. No embalmer shall embalm a dead human body when he has information reasonably indicating crime in connection with the death until permission of the coroner has been obtained.


7302. Every funeral director and embalmer shall immediately report to the local health officer every contagious case on which the funeral director or embalmer may be called.


7303. No embalmer shall embalm a dead human body when he has information reasonably indicating the death has occurred while the deceased was driving or riding in a motor vehicle, or as a result of the deceased being struck by a motor vehicle, until permission of the coroner, his appointed deputy coroner, or a judge in the county, if there is no coroner, has been obtained.


7304. No embalmer shall embalm a dead body without obtaining written or oral permission of a person who has the right to control the disposition of the remains pursuant to Section 7100, except that prior authorization is not required if embalming is necessary in order to comply with applicable laws or regulations, or is necessary to avoid irreparable deterioration of the dead body, in which case, a good faith effort shall be made to obtain permission.


Article 2. Transportation

Ca Codes (hsc:7355) Health And Safety Code Section 7355



7355. (a) Except as provided in subdivision (b), the bodies of persons who have died from any cause shall not be received for transportation by a common carrier unless the body has been embalmed and prepared by a licensed embalmer and placed in a sound casket and enclosed in a transportation case. (b) A dead body, which cannot be embalmed or is in a state of decomposition, shall be received for transportation by a common carrier if the body is placed in an airtight metal casket enclosed in a strong transportation case or in a sound casket enclosed in an airtight metal or metal-lined transportation case.


Part 2. Disinterment And Removal

Chapter 1. General Provisions

Article 1. Permits

Ca Codes (hsc:7500-7502) Health And Safety Code Section 7500-7502



7500. No remains of any deceased person shall be removed from any cemetery, except upon written order of the health department having jurisdiction, or of the superior court of the county in which such cemetery is situated. A duplicate copy of the order shall be maintained as a part of the records of the cemetery. Any person who removes any remains from any cemetery shall keep and maintain a true and correct record showing: (a) The date such remains were removed. (b) The name and age of the person removed, when these particulars can be conveniently obtained and the place to which the remains were removed. (c) The cemetery and the plot therein in which such remains were buried. If the remains are disposed of other than by interment, a record shall be made and kept of such disposition. The person making the removal shall deliver to the cemetery authority operating the cemetery from which the remains were removed, a true, full and complete copy of such record.


7501. A cemetery authority shall not remove or permit the removal of any interred remains, unless a permit for the removal has been issued by the local registrar of the district in which the premises are located, and delivered to the cemetery authority. Any person entitled by law to remove any remains may apply to the local registrar for a permit to remove them. The local registrar shall issue a permit, which in all cases, shall specify the name of a cemetery where the remains shall be interred, and shall retain a copy, except that if cremated remains are to be buried at sea as provided in Section 7117 of this code, the permit shall so specify and indicate the county where the fact of burial at sea shall be reported.


7502. In the disinterment, transportation and removal of human remains under Chapter 4 of this part a cemetery authority need not obtain a separate permit for the disinterment, transportation or removal of the remains of each person, but disinterment, transportation and removal of human remains shall be made subject to reasonable rules and regulations relative to the manner of disinterring, transporting or removing such remains as may be adopted by the board of health or health officer of the city or city and county in which the cemetery lands are situated.


Article 2. Consent To Removal

Ca Codes (hsc:7525-7528) Health And Safety Code Section 7525-7528



7525. The remains of a deceased person may be removed from a plot in a cemetery with the consent of the cemetery authority and the written consent of one of the following in the order named: (a) The surviving spouse. (b) The surviving children. (c) The surviving parents. (d) The surviving brothers or sisters.


7526. If the required consent can not be obtained, permission by the superior court of the county where the cemetery is situated is sufficient.

7527. Notice of application to the court for such permission shall be given, at least ten days prior thereto, personally, or at least fifteen days prior thereto if by mail, to the cemetery authority and to the persons not consenting, and to every other person or association on whom service of notice may be required by the court.


7528. This article does not apply to or prohibit the removal of any remains from one plot to another in the same cemetery or the removal of remains by a cemetery authority from a plot for which the purchase price is past due and unpaid, to some other suitable place; nor does it apply to the disinterment of remains upon order of court or coroner.


Chapter 3. Removal Of All Remains: Cities Of 1500-100,000

Ca Codes (hsc:7600) Health And Safety Code Section 7600



7600. The governing body of any city having a population of more than fifteen hundred and not exceeding one hundred thousand, may, by ordinance, and under such rules and regulations as it may adopt, provide for the disinterring and removal of all human remains from cemeteries in which no interments have been made for a period of two years, which are within the city, or owned and controlled by the city and located without its boundaries.


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Article 1. Power Of Municipality

Ca Codes (hsc:7700-7701) Health And Safety Code Section 7700-7701



7700. The governing body of any city or city and county, having a population of more than one hundred thousand persons, may order the disinterment and removal of all human remains interred in all or any part of any cemetery of more than five acres in extent situated within its limits, where the right of interment in the cemetery has been prohibited by law for a period of fifteen years or more, whenever the governing body, by ordinance, declares that the further maintenance of all or any part of the cemetery as a burial place for the human dead threatens or endangers the health, safety, comfort or welfare of the public and demands the disinterment and removal beyond the limits of the city, or city and county, of the human remains interred therein.


7701. The governing body of such city or city and county may in any ordinance ordering or directing the disinterment and removal of such remains prescribe reasonable rules and regulations governing the manner of making disinterments and removals and providing for reinterment in cemeteries outside the city or city and county limits. The ordinance shall prescribe a reasonable time of not less than two years in which the removal of remains may be made by the cemetery authority, or by the owners or holders of interment spaces, or by the relatives or friends of those whose remains are interred in the cemetery, and may also provide that if the remains are not removed within the period fixed, the city or city and county will itself proceed to remove the remains and reinter them in another cemetery or cemeteries outside the city or city and county limits.


Article 2. Declaration Of Intention By Cemetery Authority

Ca Codes (hsc:7725-7726) Health And Safety Code Section 7725-7726



7725. The cemetery authority of any cemetery from which human remains are ordered removed by an ordinance adopted in accordance with this chapter, may declare its intention and purpose to disinter and remove the remains in accordance with the ordinance, and to reinter the remains in another cemetery or cemeteries outside the limits of the city or city and county, or to deposit the removed remains in a memorial mausoleum or columbarium. In the case of a cemetery corporation or association the procedure for such declaration shall be by resolution of the governing body of the corporation or association, ratified and approved by a majority vote of the lot owners or holders at any regular meeting of the corporation or association, or at a meeting specially called for the purpose.

7726. Any resolution or declaration of intention to disinter and remove human remains pursuant to this chapter adopted or declared by any cemetery authority shall specify and declare that at any time after the expiration of ten months from and after the first publication of the notice of the resolution or declaration, the human remains then remaining in all or any part of the cemetery will be removed by the cemetery authority.


Article 3. Notice Of Intention

Ca Codes (hsc:7735-7739) Health And Safety Code Section 7735-7739



7735. Notice of a declaration of intention to remove the human remains from all or any part of any cemetery shall be given by publication in a newspaper of general circulation published in the city, or city and county, in which the cemetery or the portion from which removals are to be made is situated. Publication shall be at least once a week for two successive months.


7736. The notice shall be entitled "Notice of Declaration of Intention to Remove Human Remains from ____ (insert name of cemetery) in accordance with the provisions of Ordinance No. ____ (insert number) of the ____ (insert name of city, or city and county) adopted ____ (insert date)" and shall specify a date not less than ten months after the first publication when the cemetery authority causing the notice to be published will proceed to remove the remains then remaining in such cemetery or the portion from which removals are to be made.

7737. Copies of the notice shall within ten days after the first publication be posted in at least three conspicuous places in the cemetery or the portion from which removals are to be made.


7738. A copy of the notice shall be mailed to every person who owns, holds, or has the right of interment in, any plot in the cemetery or part affected, whose name appears upon the records of the cemetery. The notice shall be addressed to the last known post-office address of the plot owner as it appears from the records of the cemetery, and if his address does not appear or is not known, then to him at the city, or city and county, in which the cemetery land is situated.

7739. The notice shall also be mailed to each known living heir at law of any person whose remains are interred in the cemetery, if his address is known.


Article 4. Special Notice To Relative Or Friend

Ca Codes (hsc:7750-7754) Health And Safety Code Section 7750-7754



7750. At any time before the date fixed for the removal of remains by the cemetery authority, any relative or friend of any person whose remains are interred in the cemetery from which removals are to be made may give the cemetery authority written notice that he desires to be present when the remains are disinterred or are reinterred.


7751. The notice to the cemetery authority shall specify: (a) The name of the person whose remains are to be disinterred. (b) As accurately as possible, the plot where the remains are interred. (c) The date of interment. (d) An address at which the required notices may be given by the cemetery authority.

7752. The notice may be delivered, or forwarded by registered mail, to the office or principal place of business of the cemetery authority proposing to make removals.


7753. After receipt of such notice before the date fixed for the removal of the remains by the cemetery authority, it shall give written notice to the person requesting it of the time when the remains shall be disinterred and of the time when and the place where they will be reinterred. This notice shall be given by delivery, or by mail, to the person requesting it at least ten days prior to the date specified for the disinterment of the remains.


7754. Whenever a request of notice is given by a relative or friend, the cemetery authority shall not disinter the remains referred to until the notice of the time of disinterment is given the relative or friend, as provided in this article.


Article 5. Removals By Relatives Or Friends

Ca Codes (hsc:7800-7805) Health And Safety Code Section 7800-7805



7800. At any time prior to the removal by a cemetery authority of the remains of any person, any relative or friend of the decedent may voluntarily remove and dispose of the remains.


7801. The person desiring to cause the removal shall, prior to removal, deliver to the cemetery authority an affidavit stating the name of the decedent whose remains it is desired to remove and, so far as is known to affiant, the date of burial and the names and places of residence of the heirs at law of the decedent. If the person desiring to cause the removal is not an heir at law of the person whose remains he desires to remove, the removal shall not be made by him until he has delivered to the cemetery authority the written consent of a majority of the known heirs at law of the decedent who are residents of this State. The statements in the affidavit are sufficient evidence of the number, names, and residences of the heirs at law for all of the purposes of this article, and the written consent of the majority of the heirs at law named in the affidavit is sufficient authority for the cemetery authority to permit the removal of the remains.


7802. Removal of all remains in a plot without the filing of an affidavit of consent may be caused by any of the following: (a) The purchaser or owner of the plot. (b) The purchaser or owner of the right of interment in the plot. (c) Any one of joint purchasers or owners of the plot or of the right of interment in the plot.


7803. If the right, title or interest of any grantee of any plot or of the right of interment therein has passed by succession to the heir or heirs at law of the grantee without distribution by order of court, the heir or heirs at law may remove the remains of persons interred in the plot. The affidavit of any heir at law setting out the facts of heirship shall be accepted by the cemetery authority as sufficient evidence of the fact of the transfer.


7804. Whenever remains are removed by a relative or friend of a decedent, under the provisions of this chapter, the person causing the removal is entitled to remove any vault, monument, headstone, coping or other improvement appurtenant to the interment space from which the remains have been removed. The affidavit or written consent given under the provisions of this chapter are sufficient authority for the cemetery authority to permit the removal of any such appurtenance.

7805. If such appurtenances remain on the plot for more than ninety days after the removal of the last human remains, they may be removed and disposed of by the cemetery authority, and thereafter no person claiming any interest in the plot, or any such appurtenance shall maintain in any court any action in relation to any such appurtenance.


Article 6. Removal By Cemetery Authority

Ca Codes (hsc:7850-7852) Health And Safety Code Section 7850-7852



7850. After the completion of notice, and after the expiration of the period of ten months specified in the notice, any cemetery authority may cause the removal of all human remains interred in the cemetery or portion from which the remains have been ordered removed, and may reinter such remains in other cemeteries in this State where interments are permitted, without further notice to any person claiming any interest in the cemetery, or portion affected, or in the remains interred therein.


7851. Whenever any remains are removed from any cemetery or portion of a cemetery pursuant to this chapter by a cemetery authority, they shall be transported to and reinterred in a cemetery in an adjoining county where interments by the cemetery authority are permitted.


7852. The remains of each person reinterred shall be placed in a separate and suitable receptacle and decently and respectfully interred under rules and regulations adopted by the cemetery authority making the removal.


Article 7. Disposal Of Lands

Ca Codes (hsc:7900-7906) Health And Safety Code Section 7900-7906



7900. Whenever human remains have been ordered removed under this chapter, and the cemetery authority has made and published notice of intention to remove such remains, the portions of the cemetery in which no interments have been made, and those portions from which all human remains have been removed, may be sold, mortgaged, or otherwise encumbered as security for any loan or loans made to the cemetery authority.


7901. No order of any court shall be required prior to the making of any such sale, mortgage, or other encumbrance of such lands; but any sale of such cemetery lands made by any cemetery corporation or association controlled by a governing body shall be fairly conducted and the price paid shall be fair and reasonable and all such sales shall be confirmed, as to the fairness and reasonableness of the price paid, by the superior court of the county in which the lands are situated.


7902. Petitions for confirmation of sales shall be made to the superior court of the county or city and county in which the lands are situated, and the clerk of the court shall fix a day for and give notice of hearing in accordance with the provisions of Section 1230 of the Probate Code.


7903. If prior to the adoption of an ordinance pursuant to this chapter any cemetery authority has in good faith entered into any agreement to sell or has granted any option to buy all or any portion of its cemetery lands for a price reasonable at the time the agreement to sell was made, or the option granted, the superior court shall confirm the sale at the price stipulated in the agreement to sell or the option to buy.


7904. After the removal of all human remains interred in any part or the whole of the cemetery lands, the cemetery authority may file for record in the office of the county recorder of the county or city and county in which the lands are situated a written declaration reciting that all human remains have been removed from the lands described in the declaration. The declaration shall be acknowledged in the manner of the acknowledgment of deeds to real property by the president and secretary, or other corresponding officers of the cemetery authority, or by the person owning or controlling the cemetery lands, and thereafter any deed, mortgage, or other conveyance of any part of such lands is conclusive evidence in favor of any grantee or mortgagee named in it, and his successor or assigns, of the fact of the complete removal of all human remains therefrom.


7905. With the approval of the governing body of the city or city and county in which the cemetery lands are situated, sufficient lands may be reserved from any cemetery lands from which the human remains have been removed to erect a mausoleum or columbarium for the reinterment of disinterred remains, to provide sufficient grounds around it, and to preserve such historical vaults or monuments as the cemetery authority may determine to be proper or necessary.


7906. After all remains have been removed from a cemetery in accordance with Chapters 3 and 4, Part 2, Division VII of this code, the dedication may be removed from all or any part of such cemetery lands by an order and decree of the superior court of the county in which the property is situated, in a proceeding brought for that purpose and upon notice of hearing and proof satisfactory to the court: (a) That all bodies have been removed, or that no interments were made; and (b) That the property is no longer used or required for interment purposes.


Article 8. Use Of Funds

Ca Codes (hsc:7925-7933) Health And Safety Code Section 7925-7933



7925. Money payable or to become payable as the purchase price or on account of the purchase price of unused lands, or lands from which all remains have been removed is not subject to enforcement of a money judgment, but shall be used exclusively for any or all of the following purposes: (a) Acquisition of lands and improvements for cemetery purposes. (b) Disinterment, removal, and reinterment of bodies, pursuant to this chapter. (c) Endowment care of graves, markers, and cemetery embellishments. (d) The payment of expenses incidental to the disinterment, removal, and reinterment. (e) Any other purpose consistent with the objects for which the cemetery authority owning the cemetery is created or organized.


7926. Whenever any cemetery corporation or association has declared for removal and has published notice of its intention to make removals under this chapter, it may employ any money in its treasury to defray the expense of removal, including: (a) The expense of purchasing or otherwise providing a suitable place for the interment of remains in any other cemetery. (b) The expenses of disinterment, transportation and reinterment. (c) The expenses of removal and disposal of vaults, monuments, headstones, copings, or other improvements. (d) All necessary expenses incident to the sale or mortgaging of any land from which removals have been made. (e) All other expenses necessarily incurred in carrying out the removal, and reinterment, or disposing of remains so removed. (f) All expenses incident to any of the above purposes.


7927. From the money remaining in the treasury of the cemetery corporation or association after completing the removal and reinterment of the remains from its cemetery lands and the payment of all incidental expenses, the cemetery corporation or association shall set aside an adequate endowment care fund for the maintenance and care of the cemetery in which the remains have been interred.


7928. After making provisions for an endowment care fund to provide for maintenance and care, the governing body of the cemetery corporation or association may use such portion of the funds then remaining as it may determine to be just and fair in reimbursing those who voluntarily and at their own cost and expense removed the remains of friends or relatives from the cemetery lands from which the remains were ordered removed. Such reimbursement shall not be greater in amount than the average cost to the cemetery corporation or association for removals directly made by it.


7929. Any balance remaining in the fund may be used for such other purposes as the cemetery corporation or association may lawfully declare.

7930. Whenever any cemetery corporation or association having a governing body has caused the removal of remains from all or any portion of its cemetery and has funds in its treasury which are not required for other purposes, it may set aside, invest, use, and apply from such unexpended funds such sum as, in the judgment of the governing body, it is necessary or expedient to provide for the perpetual or other care or improvement of any cemetery in which the disinterred remains may be reinterred.


7931. In lieu of itself investing, using or applying the funds for care or improvement, the cemetery corporation or association may transfer the funds to any other corporation under such conditions and regulations as in the judgment of the governing body will insure their application to the purposes of care or improvement.


7932. Before any such transfer of funds is made, the cemetery corporation or association shall obtain an order authorizing the transfer from the superior court of the county where the cemetery or portion from which the remains were removed is situated.


7933. The order shall be obtained upon petition of the cemetery corporation or association, after such notice by publication as the court may direct, and any member or former plot owner may support or oppose the granting of the order by affidavit or otherwise. Before making the order, proof shall be made to the satisfaction of the court that notice has been given and that it is for the best interests of the cemetery corporation or association that the transfer be made.


Article 9. New Land, Mausoleum Or Columbarium

Ca Codes (hsc:7950-7955) Health And Safety Code Section 7950-7955



7950. Whenever any cemetery authority owning or controlling cemetery lands from which remains are to be removed has acquired the possession or use of any cemetery for the purpose of providing a place for the reinterment of human remains removed under this chapter, new lands may be surveyed and subdivided into plots, avenues, and walks for cemetery purposes; and any mausoleum and columbarium may be divided into crypts or niches.


7951. Plots, crypts, or niches may be sold to persons desiring to make reinterments.


7952. The governing body of any cemetery corporation or association may receive and accept as part or full consideration for the purchase price of new plots full or partial releases of rights in or to the whole or any part of the assets of the corporation or association other than the plot conveyed to the purchaser. Any retransfer to the cemetery corporation or association of any plot in the cemetery from which the removal of the human remains is to be made operates as such release.


7953. After the removal and reinterment of remains disinterred from any cemetery the cemetery authority shall cause to be erected upon or imbedded in any plot in which any remains are reinterred a suitable permanent marker identifying the remains.


7954. The cemetery authority shall prepare a complete map or plat describing and showing the location and subdivision into plots of the cemetery lands where remains are reinterred, or a plan of any mausoleum or columbarium in which such remains are interred; and there shall be attached to each plan a description of the name, where known, of each person whose remains are reinterred, and the plot in the cemetery, or the niche or compartment in the mausoleum or columbarium where such remains are reinterred.


7955. The map or plan shall be kept on file in the office of the cemetery authority and shall at all times be open to inspection by the relatives or friends of deceased persons whose remains are reinterred therein.


Article 10. Taxation

Ca Codes (hsc:7975) Health And Safety Code Section 7975



7975. When any law or ordinance requires that the remains interred in any cemetery be removed and reinterred elsewhere, no county, town or political subdivision in which the reinterment of disinterred remains takes place, shall charge for any permit or levy a tax of any nature for the reinterment.


Article 11. Religious Observances

Ca Codes (hsc:7980) Health And Safety Code Section 7980



7980. The heirs, relatives or friends of any decedent whose remains have been interred in any cemetery owned, governed or controlled by any religious corporation or by any church or religious society of any denomination or by any corporation sole administering temporalities of any religious denomination, society or church, or owned, governed or controlled by any person or persons as trustee or trustees for any religious denomination, society or church shall not disinter, remove, reinter or dispose of any such remains except in accordance with the rules, regulations and discipline of such religious denomination, society or church. The officers, representatives or agents of the church or religious society shall be the sole judge of the requirements of the rules, regulations and discipline of such religious denomination, society or church.


Article 12. Removal By Counties

Ca Codes (hsc:8000-8005) Health And Safety Code Section 8000-8005



8000. If it appears to the board of supervisors of any county owning a county cemetery that: (a) It is necessary that the property be used for other purposes, and (b) The cemetery is located on a portion of the site of an existing county institution maintained for the relief of the indigent, sick and afflicted, and (c) Adequate facilities are otherwise provided for by the county for the burial of the indigent dead; the board may, by following the procedure contained in this article, order the disinterment and removal of all humam remains interred in such cemetery.


8001. Any resolution or declaration for abandonment adopted and made under the provisions of this article shall specify and declare that at any time after the expiration of 60 days after the first publication of the notice of declaration of intended abandonment and removal, the human remains then remaining in the cemetery will be removed by the county owning the cemetery. Notice of the declaration of intended abandonment of the cemetery and proposed removal of the human remains interred therein shall be given to all persons interested therein by publication in the newspaper of general circulation published in the county determined by the board of supervisors most likely to give notice to the parties concerned. Publication shall be made once a week for four consecutive times. The notice shall be entitled "Notice of Declaration of Abandonment of Lands for Cemetery Purposes and of Intention to Remove Human Bodies Interred Therein," and shall specify a date not less than 60 days after the first publication of the notice when the county controlling the cemetery lands and causing the notice to be published will proceed to remove the human remains then remaining in such cemetery. Notice shall also be mailed to any known living heir-at-law of any person whose remains are interred in the cemetery when the address of the heir is known.

8002. At any time before the date fixed for the removal of the remains by the county owning or controlling such cemetery land, any relative or friend of any person whose remains are interred in the cemetery may voluntarily remove the remains and reinter the same as he may desire.


8003. After the publication and mailing of the notice mentioned in Section 8001 of this code and after the expiration of the 60 days specified in the notice, the county shall have the power to cause the removal of all human remains interred in the cemetery about to be abandoned and to cause the reinterment in other cemeteries of the county in which burials are permitted, without further notice to any persons claiming an interest in the remains therein interred.


8004. Whenever the remains of any person shall be removed from any abandoned cemetery by the county owning such abandoned cemetery, such remains shall be transported and reinterred in a separate and suitable receptacle. After the removal and reinterment of human bodies disinterred from an abandoned cemetery, the county owning or controlling the abandoned cemetery lands shall cause to be erected upon or imbedded in any lot or plot wherein such body is reinterred a suitable permanent marker identifying the remains with as much particularity as is available to such county and shall prepare a complete record of the name of each person, where known, and the lot or plot where the body is reinterred and such record shall be kept in the office of the board of supervisors of the county making such removals and reinterments and shall at all times be open to the relatives and friends of those so reinterred.


8005. After the removal of all human remains the property may be used, managed and controlled by the board of supervisors as other county property.


Chapter 5. California Native American Graves Protection And Repatriation

Article 1. General Provisions

Ca Codes (hsc:8010-8011) Health And Safety Code Section 8010-8011



8010. This chapter shall be known, and may be cited as the California Native American Graves Protection and Repatriation Act of 2001.

8011. It is the intent of the Legislature to do all of the following: (a) Provide a seamless and consistent state policy to ensure that all California Indian human remains and cultural items be treated with dignity and respect. (b) Apply the state's repatriation policy consistently with the provisions of the Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), which was enacted in 1990. (c) Facilitate the implementation of the provisions of the federal Native American Graves Protection and Repatriation Act with respect to publicly funded agencies and museums in California. (d) Encourage voluntary disclosure and return of remains and cultural items by an agency or museum. (e) Provide a mechanism whereby lineal descendants and culturally affiliated California Indian tribes that file repatriation claims for human remains and cultural items under the Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) or under this chapter with California state agencies and museums may request assistance from the commission in ensuring that state agencies and museums are responding to those claims in a timely manner and in facilitating the resolution of disputes regarding those claims. (f) Provide a mechanism whereby California tribes that are not federally recognized may file claims with agencies and museums for repatriation of human remains and cultural items.


Article 2. State Cultural Affiliation And Repatriation

Ca Codes (hsc:8012-8021) Health And Safety Code Section 8012-8021



8012. As used in this chapter, terms shall have the same meaning as in the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), as interpreted by federal regulations, except that the following terms shall have the following meaning: (a) "Agency" means any division, department, bureau, commission, board, council, city, county, city and county, district, or other political subdivision of the state, but does not include any school district. (b) "Burial site" means, except for cemeteries and graveyards protected under existing state law, any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which human remains were intentionally deposited as a part of the death rites or ceremonies of a culture. (c) "Commission" means the Repatriation Oversight Commission established pursuant to Article 3 (commencing with Section 8025). (d) "Cultural items" shall have the same meaning as defined by Section 3001 of Title 25 of the United States Code, except that it shall mean only those items that originated in California. (e) "Control" means having ownership of human remains and cultural items sufficient to lawfully permit a museum or agency to treat the object as part of its collection for purposes of this chapter, whether or not the human remains and cultural items are in the physical custody of the museum or agency. Items on loan to a museum or agency from another person, museum, or agency shall be deemed to be in the control of the lender, and not the borrowing museum or agency. (f) "State cultural affiliation" means that there is a relationship of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day California Indian Tribe, as defined in subdivision (i), and an identifiable earlier tribe or group. Cultural affiliation is established when the preponderance of the evidence, based on geography, kinship, biology, archaeology, linguistics, folklore, oral tradition, historical evidence, or other information or expert opinion, reasonably leads to such a conclusion. (g) "Inventory" means an itemized list that summarizes the collection of human remains and associated funerary objects in the possession or control of an agency or museum. This itemized list may be the inventory list required under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). (h) "Summary" means a document that summarizes the collection of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the possession or control of an agency or museum. This document may be the summary prepared under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). (i) "Museum" means an entity, including a higher educational institution, excluding school districts, that receives state funds. (j) "California Indian tribe" means any tribe located in California to which any of the following applies: (1) It meets the definition of Indian tribe under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). (2) It is not recognized by the federal government, but is indigenous to the territory that is now known as the State of California, and both of the following apply: (A) It is listed in the Bureau of Indian Affairs Branch of Acknowledgement and Research petitioner list pursuant to Section 82.1 of Title 25 of the Federal Code of Regulations. (B) It is determined by the commission to be a tribe that is eligible to participate in the repatriation process set forth in this chapter. The commission shall publish a document that lists the California tribes meeting these criteria, as well as authorized representatives to act on behalf of the tribe in the consultations required under paragraph (4) of subdivision (a) of Section 8013 and in matters pertaining to repatriation under this chapter. Criteria that shall guide the commission in making the determination of eligibility shall include, but not be limited to, the following: (i) A continuous identity as an autonomous and separate tribal government. (ii) Holding itself out as a tribe. (iii) The tribe as a whole has demonstrated aboriginal ties to the territory now known as the State of California and its members can demonstrate lineal descent from the identifiable earlier groups that inhabited a particular tribal territory. (iv) Recognition by the Indian community and non-Indian entities as a tribe. (v) Demonstrated membership criteria. (k) "Possession" means having physical custody of human remains and cultural items with a sufficient legal interest to lawfully treat the human remains and cultural items as part of a collection. The term does not include human remains and cultural items on loan to an agency or museum. ( l) "Preponderance of the evidence" means that the party's evidence on a fact indicates that it is more likely than not that the fact is true.

8013. (a) Any agency or museum that has possession or control over collections of California Native American human remains and associated funerary objects shall complete an inventory of all these remains and associated funerary objects and, to the extent possible based on all information possessed by the agency or museum, do all of the following: (1) Identify the geographical location, state cultural affiliation, and the circumstances surrounding their acquisition. (2) List in the inventory the human remains and associated funerary objects that are clearly identifiable as to state cultural affiliation with California Indian tribes. These items shall be listed first in order to expedite the repatriation of these items. (3) List the human remains and associated funerary objects that are not clearly identifiable by cultural affiliation but that, given the totality of circumstances surrounding their acquisition and characteristics are determined by a reasonable belief to be human remains and associated funerary objects with a state cultural affiliation with one or more California Indian tribes. Consult with California Indian tribes believed by the agency or museum to be affiliated with the items, during the compilation of the inventory as part of the determination of affiliation. If the agency or museum cannot determine which California Indian tribes are believed to be affiliated with the items, then tribes that may be affiliated with the items shall be consulted during the compilation of the inventory. (b) Any agency or museum that has possession or control over collections of California Indian unassociated funerary objects, sacred objects, or objects of cultural patrimony shall provide a written summary of the objects based upon available information held by the agency or museum. The summary shall describe the scope of the collection, kinds of objects included, reference to geographical location, means and period of acquisition, and state cultural affiliation, where readily ascertainable. The summary shall be in lieu of an object-by-object inventory. Each agency or museum, following preparation of a summary pursuant to this subdivision, shall consult with California Indian tribes and tribally authorized government officials and traditional religious leaders. (c) Each agency or museum shall complete the inventories and summaries required by subdivisions (a) and (b) by January 1, 2003, or within one year of the date on which the commission issues the list of California Indian tribes provided for under paragraph (2) of subdivision (i) of Section 8012, whichever is later. To the extent that this section requires the inventory and summary to include items not required to be included in the inventory and summary under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), the agency or museum shall supplement its inventory and summary under this section to include those additional items. (d) Upon request of a California Indian tribe, a museum or agency shall supply additional available documentation to supplement the information required by subdivisions (a) and (b). For purposes of this paragraph, "documentation" means a summary of existing museum or agency records, including inventories or catalogs, relevant studies, or other pertinent data for the limited purpose of determining the geographical origin, cultural affiliation, and basic facts surrounding the acquisition and accession of California Native American human remains and cultural items subject to this section. This section shall not be construed to authorize the completion or initiation of any scientific study of human remains or cultural items. (e) Within 90 days of completing the inventory and summary specified in subdivisions (a) and (b), the agency or museum shall provide a copy of the inventory and summary to the commission. The commission shall, in turn, publish notices of completion of summaries and inventories on its Web site for 30 days, and make the inventory and summary available to any requesting tribe or state affiliated tribe. (f) The inventory and summary specified in subdivisions (a) and (b) shall be completed by all agencies and museums that have possession or control of Native American human remains or cultural items, regardless of whether the agency or museum is also subject to the requirements of the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.). Any inventory or summary, or any portion of an inventory or summary, that has been created to meet the requirements of the Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) may be used to meet the requirements of this chapter, if appropriate. (g) Any agency or museum that has completed inventories and summaries on or before January 1, 2002, as required by the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) shall be deemed to be in compliance with this section provided that the agency or museum does both of the following: (1) Provide a copy of the inventories and summaries to the commission by July 1, 2002, or within 30 days of the date on which the commission is formed, whichever is later. (2) Prepare supplementary inventories and summaries as necessary to comply with subdivisions (a) and (b) for those portions of their collections that originate from California and that have not been determined to be culturally affiliated with federally recognized tribes which, in the case of inventories, are those portions of the collections of an agency or museum that have been identified on their inventories under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) as "culturally unidentifiable," by January 1, 2003, or within one year of the date on which the commission issues the list of California Indian tribes provided for under paragraph (2) of subdivision (j) of Section 8012, whichever is later. (h) If the agency or museum determines that it does not have in its possession or control any human remains or cultural items, the agency or museum shall, in lieu of an inventory or summary, state that finding in a letter to the commission at the commission's request. (i) Following completion of the initial inventories and summaries specified in subdivisions (a) and (b), each agency or museum shall update its inventories and summaries whenever the agency or museum receives possession or control of human remains or cultural items that were not included in the initial inventories and summaries. Upon completion, the agency or museum shall provide a copy of its updated inventories and summaries to the commission. Nothing in this section shall be construed to mean that a museum or agency may delay repatriation of items in the initial inventory until the updating of all inventories and summaries is completed.


8014. A tribe claiming state cultural affiliation and requesting the return of human remains and cultural items listed in the inventory or summary of an agency or museum or that requests the return of human remains and cultural items that are not listed in the inventory but are believed to be in the possession or control of the agency or museum in the state shall do both of the following: (a) File a written request for the human remains and cultural items with the commission and the agency or museum believed to have possession or control. (b) Provide evidence that would establish that items claimed are cultural items and are culturally affiliated with the California Indian tribe making the claim. Evidence of cultural affiliation need not be provided in cases where cultural affiliation is reasonably established by the inventory or summary.


8015. (a) Upon receiving a written request for repatriation of an item on the inventory, the commission shall forward a copy of the request to the agency or museum in possession of the item, if the criteria specified in subdivision (b) of Section 8016 have been met. At this time, the commission shall also publish the request for repatriation on its Web site for 30 days. If there are no other requests for a particular item and there is not unresolved objection pursuant to subdivision (c) of Section 8016 within 90 days of the date of distribution and publication of the inventory or summary and completion of any federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) repatriation process related to the item, the agency or museum in possession of the item shall repatriate the requested item to the requesting party. This repatriation shall occur within 30 days after the last day of the 90-day period, or on a date agreed upon by all parties. (b) Nothing in this section shall be construed to prohibit any requesting party, a tribe, an agency, or a museum from coordinating directly with each other on repatriation, or to prohibit the repatriation at any time of any undisputed items to the requesting party prior to completion of any requirements set forth in this chapter. The commission shall receive, for their records, copies of all repatriation agreements and shall have the power to enforce these agreements.


8016. (a) If there is more than one request for repatriation for the same item, or there is a dispute between the requesting party and the agency or museum, or if a dispute arises in relation to the repatriation process, the commission shall notify the affected parties of this fact and the cultural affiliation of the item in question shall be determined in accordance with this section. (b) Any agency or museum receiving a repatriation request pursuant to subdivision (a) shall repatriate human remains and cultural items if all of the following criteria have been met: (1) The requested human remains or cultural items meet the definitions of human remains or cultural items that are subject to inventory requirements under subdivision (a) of Section 8013. (2) The state cultural affiliation of the human remains or cultural items is established as required under subdivision (f) of Section 8012. (3) The agency or museum is unable to present evidence that, if standing alone before the introduction of evidence to the contrary, would support a finding that the agency or museum has a right of possession to the requested cultural items. (4) None of the exemptions listed in Section 10.10(c) of Title 43 of the Federal Code of Regulations apply. (5) All other applicable requirements of regulations adopted under the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.), contained in Part 10 of Title 43 of the Code of Federal Regulations, have been met. (c) Within 30 days after notice has been provided by the commission, the museum or agency shall have the right to file with the commission any objection to the requested repatriation, based on its good faith belief that the requested human remains or cultural items are not culturally affiliated with the requesting California tribe or are not subject to repatriation under this chapter. (d) The disputing parties shall submit documentation describing the nature of the dispute, in accordance with standard mediation practices and the commission's procedures, to the commission, which shall, in turn, forward the documentation to the opposing party or parties. The disputing parties shall meet within 30 days of the date of the mailing of the documentation with the goal of settling the dispute. (e) If, after meeting pursuant to subdivision (b), the parties are unable to settle the dispute, the commission, or a certified mediator designated by the commission in accordance with subdivision (b) of Section 8026, shall mediate the dispute. (f) Each disputing party shall submit complaints and supporting evidence to the commission or designated mediator and the other opposing parties detailing their positions on the disputed issues in accordance with standard mediation practices and the commission's mediation procedures. Each party shall have 20 days from the date the complaint and supporting evidence were mailed to respond to the complaints. All responses shall be submitted to the opposing party or parties and the commission or designated mediator. (g) The commission or designated mediator shall review all complaints, responses, and supporting evidence submitted. Within 20 days after the date of submission of responses, the commission or designated mediator shall hold a mediation session and render a decision within seven days of the date of the mediation session. (h) When the disposition of any items are disputed, the party in possession of the items shall retain possession until the mediation process is completed. No transfer of items shall occur until the dispute is resolved. (i) Tribal oral histories, documentations, and testimonies shall not be afforded less evidentiary weight than other relevant categories of evidence on account of being in those categories. (j) If the parties are unable to resolve a dispute through mediation, the dispute shall be resolved by the commission. The determination of the commission shall be deemed to constitute a final administrative remedy. Any party to the dispute seeking a review of the determination of the commission is entitled to file an action in the superior court seeking an independent judgement on the record as to whether the commission's decision is supported by a preponderance of the evidence. The independent review shall not constitute a de novo review of a decision by the commission, but shall be limited to a review of the evidence on the record. Petitions for review shall be filed with the court not later than 30 days after the final decision of the commission.


8017. If there is a committee or group of tribes authorized by their respective tribal governments to accept repatriation of items originating from their region and culturally affiliated with those tribal governments, then the items may be repatriated to those groups.


8018. An agency or museum that repatriates human remains and cultural items in good faith pursuant to this chapter is not liable for claims by an aggrieved party or for claims of breach of a fiduciary duty or the public trust or of violation of state law that are inconsistent with this chapter. No action shall be brought on behalf of the state or any other entity or person for damages or for injunctive relief for a claim of improper disposition of human remains or cultural items if the agency or museum has complied with the provisions of this chapter.

8019. Nothing in this section shall be construed to prohibit the governing body of a California Indian tribe or group authorized by Section 8017 from expressly relinquishing control over any human remains or control or title to any cultural item.


8020. Notwithstanding any other provision of law, and upon the request of any party or an intervenor, the commission or designated mediator may close part of a mediation session to the public if the commission or designated mediator finds that information required at the mediation session may include identification of the specific location of a burial site, human remains and cultural items or that information necessary for a determination regarding repatriation may compromise or interfere with any religious practice or custom.


8021. The filing of an appeal by either party automatically stays an order of the commission or a designated mediator on repatriation of human remains and cultural items.


Article 3. Repatriation Oversight Commission

Ca Codes (hsc:8025-8028) Health And Safety Code Section 8025-8028



8025. (a) There is hereby established the Repatriation Oversight Commission composed of 10 members as follows: (1) Two voting members appointed by the Governor from nominations made by federally recognized California tribes within the state. One member each shall represent the central and southern areas of the state. (2) Two voting members appointed by the Speaker of the Assembly from nominations made by federally recognized California tribes within the state. One member each shall represent the northern and southern areas of the state. (3) Two voting members appointed by the Senate Committee on Rules from nominations made by federally recognized California tribes within the state. One member each shall represent the northern and central areas of the state. (4) One voting member appointed by the Governor from nominations submitted by state agencies or state-funded universities and colleges. (5) One voting member appointed by the Governor from nominations submitted by the University of California. (6) One voting member appointed by the Governor from nominations submitted by the California Association of Museums. (7) One voting member of a nonfederally recognized tribe appointed by the Governor from nominations submitted by the Native American Heritage Commission. (b) The executive secretary of the commission shall be appointed by the Governor and shall be an ex officio nonvoting member of the commission.


8026. The commission shall meet when necessary, and at least quarterly shall perform the duties specified in this section including, but not limited to, the following: (a) Order the repatriation of human remains and cultural items in accordance with this chapter. (b) Establish mediation procedures and, upon application of the parties involved, mediate disputes between California tribes and museums and agencies relating to the disposition of human remains and cultural items. The commission shall have the power of subpoena for purposes of discovery and may impose civil penalties against any agency or museum that intentionally or willfully fails to comply with the provisions of this chapter. Members of the commission shall receive training in mediation for purposes of this subdivision. The commission may delegate its responsibility to mediate disputes to a certified mediator. (c) Administer the budget of the commission. (d) Establish and maintain a website for communication between tribes and museums and agencies. (e) Upon the request of California tribes or museums and agencies, analyze and make decisions regarding providing financial assistance to aid in specific repatriation activities. (f) Accept grants or donations, real or in-kind, to carry out the purposes of this chapter. (g) By making recommendations to the Legislature, assist California tribes in obtaining the dedication of appropriate state lands for the purposes of reinterment of human remains and cultural items. (h) Request and utilize the advice and services of all federal, state, and local agencies as necessary in carrying out the purposes of this chapter. (i) Prepare and submit to the Legislature an annual report detailing commission activities, disbursement of funds, and dispute resolutions relating to the repatriation activities under this chapter. (j) Refer any known noncompliance with the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.) to the United States Attorney General and the Secretary of the Interior. (k) Impose administrative civil penalties against any agency or museum that is determined by the commission to have violated any provision of this chapter. ( l) Establish those rules and regulations the commission determines to be necessary for the administration of this chapter.


8027. (a) Members of the commission shall not receive a salary but shall be entitled to reimbursement for actual expenses incurred in the performance of their duties. (b) The chairperson of the commission shall be elected by the members.


8028. (a) The term of any member of the commission shall be for three years, and each member shall serve no more than two consecutive terms. Staggered terms shall be established by the drawing of lots at the first meeting of the commission so that a simple majority of the members shall initially serve a three-year term, and the remainder initially a two-year term. (b) If a vacancy occurs, a replacement shall be named by the same constituency as the constituency that was represented by the member whose membership is being replaced. Replacements shall serve only for the remainder of the vacant member's term.


Article 4. Penalties And Enforcement Procedures

Ca Codes (hsc:8029-8030) Health And Safety Code Section 8029-8030



8029. (a) Any agency or museum that fails to comply with the requirements of this chapter may be assessed a civil penalty by the commission, not to exceed twenty thousand dollars ($20,000) for each violation, pursuant to regulations adopted by the commission. A penalty assessed under this section shall be determined on the record after the opportunity for a hearing. (b) In assessing a penalty under this section, the commission shall consider the following factors, in addition to any other relevant factors, in determining the amount of the penalty: (1) The archaeological, historical, or commercial value of the item involved. (2) The cultural and spiritual significance of the item involved. (3) The damages suffered, both economic and noneconomic, by the aggrieved party. (4) The number of violations that have occurred. (c) If any agency or museum fails to pay a civil penalty pursuant to a final order issued by the commission and the time for judicial review has passed or the party subject to the civil penalty has appealed the penalty or after a final judgment has been rendered on appeal of the order, the Attorney General shall act on behalf of the commission to institute a civil action in an appropriate court to collect the penalty. (d) An agency or museum shall not be subject to civil penalties for actions taken in good faith to comply with the federal Native American Graves Protection and Repatriation Act (25 U.S.C. Sec. 3001 et seq.).

8030. The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.


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