An appeals court made the ruling on Wednesday, prompted by the case of a Staten Island forensic pathologist who kept the brain of a 17-year-old car crash victim

New York medical examiners can keep organs without notifying family members when bodies are released, a New York appeals court ruled on Wednesday.

The decision divided the seven-member court 5-2, after a Staten Island forensic pathologist kept the brain of a 17-year-old car crash victim, only for it to be discovered by a classmate on a field trip. The appeals court justices all wanted the state legislature to decide the matter.

The right to claim a loved one’s remains in order to bury them is known as “right of sepulcher”. The right is considered part of common law, derived from unwritten elements in English law on which many American statutes are based.

The family of Jesse Shipley brought suit after a forensic pathologist in Richmond County returned Shipley’s body but not his brain, and instead “fixed” the brain in a jar of formaldehyde-derivative fluid.

The failure to return the organ was not discovered until Shipley’s high-school class took a science field trip to the Staten Island morgue, two months later. A classmate noticed Shipley’s name on the outside of a jar containing a brain. That classmate told Shipley’s sister, Shannon, who told her parents.

Shipley’s parents, Andre and Korisha, brought suit for infliction of emotional distress after speaking to their priest about whether a burial was “proper” without a brain.

Though New York’s lower court, known as the supreme court, ruled that the medical examiner did not have the right to keep Shipley’s brain, New York City fought the ruling and won on appeal.

“There is simply no legal directive that requires a medical examiner to return organs or tissue samples derived from a lawful autopsy and retained by the medical examiner after such an autopsy,” said a majority opinion written by judge Eugene F Pigott Jr.

The two dissenters, chief judge Jonathan Lippman and judge Jenny Rivera, disagreed.

“The majority suggests that any change in the rights of the next of kin should come from the legislature,” they wrote. “That is indeed so because the majority has interpreted the law as applied to cases involving an autopsy in such a way as to deny the next of kin the right to demand return of their loved one in as undisturbed a condition as possible.

“Perhaps the majority’s ruling will result in greater awareness of the right of sepulcher. Even so, for those who indeed know enough to seek the return of the deceased’s organs, the majority provides no ‘solace and comfort’ and little assurance that their request will be honored by the medical examiner.”