in Re Certified Question - Waeschle v. Dragovic, 2010 WL 4272891

Eastern District of Michigan certified a question to Michigan Supreme Court under MCR 7.305(B) about whether next of kin may possess a decedent's brain after forensic use.
Question assumes the brain was removed by a medical examiner for lawful investigation into the cause of death and later no longer needed for forensic examination.
Statutory framework at issue is MCL 52.205, originally enacted in 1953, governing return of the body and permissible retention for crime detection.
Court held that the statute requires prompt return of the body and allows retention of portions necessary to detect crime, providing no clear right to a brain after burial.
There is a history of practice permitting retention and disposal of examined brains under prior law, with rules promulgated to permit this practice; no Michigan case grants possessory right to a brain post-examination.
2010 amendment MCL 52.205(6) expressly delineates the medical examiner’s duties in these circumstances; the plaintiff did not request return of the brain.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do next of kin have a right to possess the brain after forensic examination?	Plaintiff asserts a possessory right to brain for burial/cremation.	No clear statutory right under MCL 52.205 to possess the brain once body is returned and brain retained only for crime detection.	No possessory right for next of kin.
How do MCL 52.205(5) and (6) affect duties to return or retain a brain?	Statute provides groundwork for return of the body and may imply a right to brain retention for investigation.	Statute permits prompt return and retention for crime detection; no duty to return brain absent amendment.	MCL 52.205(5) and (6) govern duties; no right to return the brain post-examination.
Does historical practice impact current rights to a brain after forensic use?	Historical practice supports retention and later disposal of an examined brain.	Practice does not confer a possessory right on next of kin under current law.	No, practice does not create a statutory possessory right.

Waeschle v. Oakland Co. Med. Examiner, 576 F.3d 539 (6th Cir. 2009) (certified question about brain retention; cited for context on the issue)
In re Certified Question (Waeschle v Oakland Co Med Examiner), 485 Mich. 1116 (Mich. 2010) (addressed Michigan law on certification and brain-retention duties)