1 Committee on Infant and Preschool Children, The Sudden Infant Death Syndrome, 50 Pkdiatrics 964 (1972). The disease can be confirmed, but not explained, at autopsy by the presence of certain changes in the tissue of the deceased child's respiratory system and the absence of lethal lesions, which are indicative of other causes of death.

2 Pomeroy, Sudden Death Syndrome, 69 Am. J. Nurs. 1886, 1887 (1969)Google Scholar.

3 Id. at 1886:

4 Medical News, 226 J.A.M.A. 1291, 1299 (1973).

5 Bergman, Pomeroy, & Bcckwith, The Psychiatric Toll of the Sudden Infant Death Syndrome, 60 G.P. 99, 102-04 (1969)Google Scholar.

6 226 J.A.M.A., sufna note 4, at 1292.

7 69 Am. J. Nurs., supra note 2, at 1887.

8 A. Bergman, A Study In The Management of Syndrome Death In The United States (1972), at Section I.

9 Id.

10 69 Am. J. Nurs., supra note 2, at 1887.

11 Although nearly every state statutorily enumerates the circumstances which will place a death within the purview of its death investigation system, none expressly require the investigating official to perform an autopsy in those deaths within his jurisdiction, excepting the few states that have enacted special legislation mandating the autopsy of infant deaths. See SectionlV.B. infra. In statutorily requiring certain deaths to be brought to the attention of the coroner or medical examiner, the public permits him to utilize his expert judgment in making the decision of whether an autopsy is warranted to determine the cause of death or whether the public interest is better served by a more superficial investigation. Indeed, by statute, Louisiana provides that ”… if no suspicion of death from violence exists, the coroner may without the necessity of holding an investigation make the certificate of death from the statement of … persons having adequate knowledge of the facts.” La. Rev. Stat. Ann. tit. 33, § 1561 (1972 Supp.). Additional examples of statutes permitting broad coroner discretion are found in Kansas (“If, in the opinion of the coroner, it is advisable and in the public interest that an autopsy be made … such autopsy shall be made … .“Kan. Stat. Ann. § 19-1033 [1974]) and West Virginia (“If in the opinion of the chief medical examiner or of the medical examiner of the county … it is advisable and in the public interest that an autopsy be made … such autopsy shall be made …” W. Va. Code § 61-12-10 [1974 Supp.]).

12 In this regard, Pennsylvania law (not applicable to Philadelphia, which has a Medical Examiner System) expressly provides that “The purpose of the [coroner's] investigation shall be to determine whether or not … such death may have resulted from the criminal acts or criminal neglect of persons other than the deceased, rather than from natural causes or by suicide.” Pa. Stat. Ann. tit. 16, § 1237 (1956). Similarly, Utah cites the purpose of an official death investigation as “determining whether there exists any criminal responsibility for death.” Utah Code Ann. § 26-20-7 (1973 Supp.). New Mexico Law does not authorize the coroner to order an official autopsy unless he “suspects a death was caused by a criminal act or omission or if the cause of'death is.obscure.” N.M. Stat. Ann. § 15-43-46 (1973 Supp.). Also, under South Dakota law there is no authority to order an official autopsy unless it is supposed that the deceased might have died by “unlawful means.” S.D. Laws Ann. § 23-13-8 (1967).

The only context in which an official autopsy appears to be statutorily authorized in several of the remaining states is when it is performed as part of a Coroner's Inquest. But in many of these states, an Inquest is ordered only when, as Arizona provides, “a person … has suddenly died under such circumstances as afford reasonable ground to suspect that the death was occasioned by the act of another by criminal means …” Ariz. Rev. Stat. Ann. tit. 22, § 511 (1956). Likewise, under Nebraska law, a coroner may hold an Inquest “upon the dead bodies of such persons only as are supposed to have died by unlawful means.“ Neb. Rev. Stat. Ann. ch. 18, § 23-1801 (1970). See also Wyo. Stat. Ann. § 7-81 (1973 Supp.).

One further indicator that a death investigation agency operates simply as an arm of the criminal justice system is its placement among those agencies with which it is functionally associated. For example, in New Jersey the Office of the State Medical Examiner is an agency of the state's Division of Criminal Justice [N.J. Stat. Ann. § 52:17B-79 (1974 Supp.)]. The Rhode Island Division of Medical Examiners is in the Department of the Attorney-General [R.I. GEN. LAWS § 23-4-1 (1972 Supp.)]. Also, all postmortem examinations ordered by coroners in Georgia are performed at the State Crime Laboratory [Ga. Code Ann., § 21-204 (1973 Supp.)].

13 Ark. Stat. Ann. § 42-621 (1973 Supp.), for example, provides that “The records, files and information kept, retained or obtained by the State Medical Examiner … shall be confidential and privileged unless released under and by the direction of a court of competent jurisdiction … to persons with legal or scientific interests.” Similarly, under New York law: “Upon application of the … next of kin of the deceased or of any person who is or may be affected in a civil or criminal action by the contents of the record of any (postmortem) investigation … an order may be made by a court of record … that the record of that investigation be made available for his inspection … .” N.Y. County Law § 677 (McKinney 1972 Supp.). See also N.C. Gen. Stat. Ann. § 130-200 (1974).

14 In these jurisdictions, persons need not establish a legally recognized interest supporting a court order but need merely meet an administrative standard of possessing a special interest. See Conn. Gen. Stat. Ann. § 19-535 (1973 Supp.); N.J. Stat. Ann. § 52:17B-92 (1970); Utah Code Ann. § 26-20-7 (1973 Supp.); and D.C. Code Ann. § 11-2309 (1973). Montana wholly eliminates the smallest doubt as to whether parents meet the definition of “persons with a legitimate interest” by requiring the postmortem examiner to “send a written report of his [autopsy] findings, including the cause of death, to the next of kin of the decedent … requesting the report.” Mont. Rev. Code Ann. § 69-5104 (1974 Supp.).

15 Ohio Rev. Code. Ann. § 313.10 (1953), for example, provides that “All records in the coroner's office shall be open to inspection by the public, and any person may receive a copy of any such record or part thereof upon demand in writing . ..” See also Tex. Code Crim. Proc. art. 49.25, § 11 (1966) and Kan. Stat. Ann. § 19-1034 (1974).

16 A. Bergman, supra note 8.

17 Id. at Section X.

18 Oregon State Health Div., Bull. No. 51, Sudden Infant Death Syndrome (1973).

19 Me. Rev. Stat. Ann. tit. 22, § 3026 (1974 Supp.); Cal. Health & Safety Code §§ 462, 10253 (West 1975 Supp.); Mass. Gen. Laws Ann., ch. 38, § 6C (1974 Supp.).

20 Me. Rev. Stat. Ann. tit. 22, § 3026 (1974 Supp.).

21 Cal. Health & Safety Code §§ 462, 10253 (West 1975 Supp.).

22 Me. Rev. Stat. Ann. tit. 22, § 3026 (1974 Supp.).

23 Cal. Health & Safety Code §§ 462, 10253 (West 1975 Supp.).

24 Mass. Gen. Laws Ann. ch. 38, § 6C (1974 Supp.).

25 Me. Rev. Stat. Ann. tit 22, § 3026 (1974 Supp.).

26 Cal. Health & Safety Code, §§ 462, 10253 (West 1975 Supp.).

27 See footnotes 15-18 supra, and accompanying text.

28 Wash. Rev. Code Ann. § 68.08.100 (1973 Supp.).

29 M. Dore, State Gov't Liaison Committee Report, February 10, 1974 (unpublished report to National Foundation For Sudden Infant Death, Inc. on file in New York, New York).

30 [1973-1974] National Foundation For Sudden Infant Death, Inc. Annual Report, at 32.

31 On May 8, 1973, Senator Walter F. Mondale (D. Minn.) introduced S. 1745, a bill to provide financial assistance for programs of medical research and to provide information and counseling services relating to SIDS. On September 20, 1973, the Sub-committee on Health and the Sub-committee on Children and Youth of the Senate Committee on Labor and Public: Welfare held a joint hearing co-chaired by Senator Mondale and Senator Edward M. Kennedy (D. Mass.). (See Joint Hearing on S. 1745 Before the Sub-committee on Health and the Sub-committee on Children and Youth of the Senate Committee on Labor and Public Welfare, 93rd Cong., 1st Sess., (U.S. Gov't Printing Office, 1973)). (See also H.R. 11386.) The Act was signed into law on April 23, 1974, as P.L. 93-270 and has been codified as section 1121(b) of the Public Health Service Act (42 U.S.C. 300c-ll). For additional information on the legislative history and purpose of P.L. 93-270 see 1974 U.S. Code Cong, and Adm. News.

In pertinent part, the Act provides that:

• (a) The Secretary [of DHEW], through the Assistant Secretary for Health, shall carry out a program to develop public information and professional educational materials relating to sudden infant death syndrome and to disseminate such information and materials to persons providing health care, to public safety officials, and to the public generally.

(b)

• (l) The Secretary may make grants to public and nonprofit private entities, and enter into contracts with public and private entities, for projects which include both—

• (A) the collection, analysis, and furnishing- of information (derived from post mortem examinations and other means) relating to the causes of sudden infant death syndrome; and

• (B) the provision of information and counseling to families affected by sudden infant death syndome.

• (2) No grant may be made or contract entered into under this subsection unless an application therefor has been submitted to and approved by the Secretary. Such application shall be in such form, submitted in such manner, and contain such information as the Secretary shall by regulation prescribe. Each application shall—

• (A) provide that the project for which assistance under this subsection is sought will be administered by or under supervision of the applicant;

• (B) provide for appropriate community representation in the development and operation of such project;

• (C) set forth such fiscal controls and fund accounting procedures as may be necessary to assure proper disbursement of and accounting for Federal funds paid to the applicant under this subsection; and

• (D) provide for making such reports in such form and containing such information as the Secretary may reasonably require.

• (3) Payments under grants under this subsection may be made in advance or by way of reimbursement, and at such intervals and on such conditions, as the Secretary finds necessary.

• (4) Contracts under this subsection may be entered into without regard to section 529 of Title 31 and section 5 of Title 41.

• (5) For the purpose of making payments pursuant to grants and contracts under the subsection, there are authorized to be appropriated $2,000,000 for the fiscal year ending June 30, 1975, $3,000,000 for the fiscal year ending June 30, 1976, and $4,000,000 for the fiscal year ending June 30, 1977.

• (c) The Secretary shall submit, not later than January 1, 1976, a comprehensive report to the Committee on Labor and Public Welfare of the Senate and the Committee on Interstate and Foreign Commerce of the House of Representatives respecting the administration of this section and the results obtained from the programs authorized by it. (Emphasis added).

  Although the Act, by its terms, offers some hope of contributing to the solution of the SIDS problem, appropriated funds for implementation of projects under the Act ($2 Million under the F.Y. 1975 Budget; but no funding has been requested or appropriated under the F.Y. 1976 Budget) have not been released, since they are presently the subject of a Presidential recision request. If so recinded, the Act, of course, for all practical purposes will be rendered a nullity.

  The foregoing notwithstanding, DHEW, through the Assistant Secretary for Health, published proposed regulations for implementation of the grant portion of the Act in the March 5, 1975 Federal Register. In relevant part, the proposed regulations provide as follows:

  § 51a.502 Definitions.

  As used in this subpart:

• (a) “Act” means the Public Health Service Act, as amended.

• (b) “Secretary” means the Secretary of Health, Education, and Welfare and any other officer or employee of the Department of Health, Education, and Welfare to whom the authority involved has been delegated.

• (c) “Nonprofit” as applied to a private entity means that no part of the net earnings of such entity inures, or may lawfully inure, to the benefit of any private shareholder or individual.

• (d) “The Sudden Infant Death Syndrome,” for the purpose of this regulation, means the sudden death of any infant which is unexpected by history, and in which a thorough post mortem examination fails to demonstrate an adequate cause of death.

• (e) “SIDS” means the sudden infant death syndrome.

• (f) “Family” means the relatives of a SIDS victim or any persons functioning in loco parentis to such victim at the time of a SIDS death.

• (g) “Applicant” means a public or nonprofit private entity which applies for a grant.

• (3) Payments under grants under this subsection may be made in advance or by way of reimbursement, and at such intervals and on such conditions, as the Secretary finds necessary.

• (4) Contracts under this subsection may be entered into without regard to section 529 of Title 31 and section 5 of Title 41.

• (5) For the purpose of making payments pursuant to grants and contracts under the subsection, there are authorized to be appropriated $2,000,000 for the fiscal year ending June 30, 1975, $3,000,000 for the fiscal year ending June 30, 1976, and $4,000,000 for the fiscal year ending June 30, 1977.

• (c) The Secretary shall submit, not later than January 1, 1976, a comprehensive report to the Committee on Labor and Public Welfare of the Senate and the Committee on Interstate and Foreign Commerce of the House of Representatives respecting the administration of this section and the results obtained from the programs authorized by it. (Emphasis added).

  Although the Act, by its terms, offers some hope of contributing to the solution of the S1DS problem, appropriated funds for implementation of projects under the Act ($2 Million under the F.Y. 1975 Budget; but no funding has been requested or appropriated under the F.Y. 1976 Budget) have not been released, since they are presently the subject of a Presidential recision request. If so recinded, the Act, of course, for all practical purposes will be rendered a nullity.

  The foregoing notwithstanding, DHEW, through the Assistant Secretary for Health, published proposed regulations for implementation of the grant portion of the Act in the March 5, 1975 Federal Register. In relevant part, the proposed regulations provide as follows:

  § 51a.502 Definitions.

  As used in this subpart:

• (a) “Act” means the Public Health Service Act, as amended.

• (b) “Secretary” means the Secretary of Health, Education, and Welfare and any other officer or employee of the Department of Health, Education, and Welfare to whom the authority involved has been delegated.

• (c) “Nonprofit” as applied to a private entity means that no part of the net earnings of such entity inures, or may lawfully inure, to the benefit of any private shareholder or individual.

• (d) “The Sudden Infant Death Syndrome,” for the purpose of this regulation, means the sudden death of any infant which is unexpected by history, and in which a thorough post mortem examination fails to demonstrate an adequate cause of death.

• (e) “SIDS” means the sudden infant death syndrome.

• (f) “Family” means the relatives of a SIDS victim or any persons functioning in loco parentis to such victim at the time of a SIDS death.

• (g) “Applicant” means a public or nonprofit private entity which applies for a grant.

  § 51a.5O3 Eligibility.

• (a) Eligible applicants. Any public or nonprofit private entity is eligible to apply for a grant under this subpart.

• (b)

  Eligible projects. Grants to eligible applicants may be made by the Secretary for projects which include both:

• (1) The collection, analysis, and furnishing of information (derived from post mortem examinations and other means) pertaining to the causes of SIDS; and

• (2) The provision of information and counseling to families affected by SIDS.

§51a.511 Confidentiality of information.

All information as to personal facts and circumstances obtained by the project staff in connection with the provision of services under the project shall be treated as privileged communications, shall be held confidential, and shall not be divulged without the individual's consent except as may be necessary to provide services to the individual. Such information may be disclosed in summary, statistical, or other form which does not identify particular individuals. (Emphasis added).

There is a 30-day comment period under the proposed regulations during which all interested persons have the opportunity to submit written critiques and suggestions.

Although federal monies may eventually be made available to SIDS management programs that qualify under the Act and the HEW regulations implementing it, the Act falls far short of solving the problems addressed in this Article for several reasons. First, whether or not a given State agency may legally participate in an SIDS program at all remains a matter of those State laws prescribing local death investigation procedure—since nothing contained in the Act compels state, county, or municipal authorities to so participate. Second, in order to be truly viable, the Act must contain language superceding state barriers to effective SIDS management, i.e., it must, at the very least, authorize (if not compel) state and county death investigation officials to perform autopsies in all cases of unexplained, sudden infant death, and it must also authorize them to release hard data on the results of such autopsies to the deceased child's parents upon their request for such information.

32 In this connection, an admirably concise guideline found by the author to be most useful in drafting corrective SIDS legislation is the five-point SIDS Parents Bill of Rights passed in Houston in February of 1974 by the Resolutions Committee of the American Bar Association's Young Lawyers Section. Although each jurisdiction will probably require its own statutory language, every piece of corrective SIDS legislation should in the opinion of the author (and others knowledgeable in this subject area) expressly provide for the following procedural protections:

1. A parental right to autopsy conducted by a qualified pathologist at state expense;

2. Expedient reporting of the cause of death as soon as possible after completion of a gross examination;

3. Use of the term “SIDS” on death certificates even if there is at most a probable diagnosis of SIDS;

4. Where SIDS is diagnosed, prompt referral of the parents of the deceased child to available follow-up counseling and literature explaining the disease; and

5. Procedures adequate to ensure a parental right to be presumed innocent of their child's death in every respect, absent legal due process leading to conviction. See, e.g., National Foundation For Sudden Infant Death, Inc. supra note 30. at Appendix 11.

33 The 77th Legislature of the State of Michigan, Regular Session of 1974, recently passed into law HB. 5505—the language of which resembles the Massachusetts SIDS statute—which expressly mandates the right of parents to have an autopsy performed at public expense in cases of infant death. (See footnotes 19-27 supra, and accompanying text). Although a similar bill failed to pass the 1974 Session of the Kansas Legislature, funds were voted under a companion appropriations bill to establish an administrative SIDS management program not unlike the Oregon system. ﹛See footnotes 15-18 supra, and accompanying text).

Subsequent to this writing, several other state legislatures have received bills proposing to amend the existing death investigation procedures of their respective jurisdictions in an effort to meet the special public health problem posed by SIDS. For example, State Rep. Anthony McManus, on March 5, 1975, introduced into the New Hampshire Legislature HB. 533, a bill drafted to incorporate the principles articulated in “The SIDS Parents Bill of Rights.” (See footnote 32 supra).