AbstractThe law has the power toconstruct identities which consequently shape society’s views. This essayaddresses issues with regard to giving the body a legal identity beyond death. Thelegal history of the treatment of the dead body is canvassed first to givecontext and outline how the law has developed to construct and reflectsociety’s beliefs about the status of a dead body. There is a specific focus onthe property approach, referring to the possibility of an organ market and theformation of families posthumously. I conclude that extending legal identitybeyond death could be a beneficial outcome but address the fact that moral andethical arguments against it may hinder implementation.
IntroductionThelaw is a powerful tool in the formation of identity that is arguablyfundamental in shaping the way society views the status and roles of a person. Constructinga person’s legal identity gives them legal significance, which attaches to themspecific social and legal roles. This is important because having certain legalidentities leads to real consequences. This essay will first briefly look atthe different purposes of the body after death, then it will assess what itmeans to have a legal identity and the current position, and finally it will examinethe implications of extending such an identity in the context of death. Thequestion of extending legal identity beyond death and its implications has beenthe centre of many debates and legal cases over the course of history. Arguablythere are several advantages and disadvantages in doing so, and this essay aimsto address some of these, looking at the recognition of the body as a propertyinterest and what may follow from this, with a particular focus on the possibilityof an organ market and forming a family posthumously.
After addressing thearguments for and against extending legal identity beyond death, a conclusionwill be drawn as to which is the most persuasive stance. Purposes of the dead body, personificationand history Thebody serves several purposes after death, including being a form ofpsychological comfort for those grieving, a source of organs for donation, asource of genetic material available for reproduction and scientific research(Madoff, 2010.) The use of the body for these and other purposes can raiseseveral ethical, moral and legal concerns.
One of the legal concerns is theconstruction of identity of the dead body, and how this goes on to affectcertain practices and who benefits from this. The law is form of socialcontrol, as it is made by those in power and therefore reflects the interestsof the people making it. Firstly, it is important to look at the history of thelegal status of the dead body, then assess the current status in order tounderstand the implications of giving it legal identity.
A corpse has not beengiven the legal rights as a person would so have, but nor have judges beencomfortable with classifying it as property IS1 (Naffine,1999). Historically, this view has varied, with some early statutes allowingfor punishment of the corpse of executed criminals. This leads to thepersonification of the corpse, a view that does not sit well with other legalopinion (Naffine, 1999). The common law rule that was subsequently espousedby the United States and that currently prevails is that a person does not haveproperty interests in their body once they have died (Madoff, 2010).
Severalhistoric cases have grappled with the issue of conceptualising bodies as rightsbearing entities, beginning as early as 1614 with Haynes’s Case. In thatcase, William Haynes stole the winding sheets that corpses were wrapped inafter digging up their graves and subsequently reburying the bodies. It washeld that the sheets belonged to the person who provided them and did notbelong to the dead bodies (Naffine, 1999). This is a clear expression of thelegal view that a corpse cannot own property, and thus was not able to bepersonified as a rights bearing entity. The judge in that case also referred tothe body as ‘but a lump of earth’, however, the body was not treated the sameas earth in terms of property laws. This has left the identity of the body in aconfusing abeyance as it is neither personified nor viewed as property itself.
Naffine (1999) argues that the reluctance to legally personify the body stemsfrom the idea that society views personhood as something that comes from havinga rational will, and that with death, the will goes, thus personhood for acorpse is unattainable, at least within the Western legal sphere. In the 1788case of R v Lynn, the court held thatthe removal of a corpse from the grave for dissection was an offence ofindecency, but not larceny (Naffine, 1999). In an American decision in 1872, Pierce v Proprietors of Swan Point Cemetery,a ‘quasi-property’ interest in the body was recognised for those in charge ofthe corpse and they had the right to protect it. This view was not taken in theEnglish courts.Western legal thought has largely followedthe view that the body cannot be personified as a rights bearing entity due tothe long standing view that our bodies are not connected with our reasoning andthinking capacities (Naffine, 1999). Naffine(1999) further argues that it is a cultural barrier to personification of thedead body. The main advantage of personifying the corpse seems to be theprevention of the commodification of the body, which could be an outcome of theproperty approach.
The body as a property interestTheother dominant view in the legal sphere regarding the body is giving it legalidentity through recognising it as property, appropriately named the ‘propertyapproach’. Recognising something as a property interest brings with it severaladvantages. In the American context, the government is unable to interfere withproperty interests as per the Constitution (Madoff, 2010).
Property rights arevaluable because they grant the individual right to possess, exclude, use,dispose, enjoy profits and to destroy (Wagner, 1995). Many believe that aperson does have property rights intheir own body but this is arguably not the case for several reasons, includingthe fact that a person does not possess the right to sell and also that thereis a lack of legal recognition of the body as property along with moral andethical abhorrence surrounding the idea. Bodily IntegrityOneof the main advantages that comes with characterising the body as property is addressedby Andrews (1985), who argues that a property approach upholds bodily integrityand allows for a greater level of control, especially regarding what happens totheir organs and body after death. Logically Madoff’s (2010) contention follows;being that the ability of the law to designate someone the owner of propertymakes it easier to assert certain claims regarding that property. This resultsin people having a greater level of autonomy over their bodies, and those incontrol of them after they die can seek legal remedies if the corpse is treatedinappropriately. Not only does it enable greater control, but can be seen as aform of empowerment as emphasized by Campbell (1992). The individual isempowered by having a voice over what happens to their body after they die or afamily member or other can decide what to do with the body, instead of thepower remaining with the state or medical community.
Historically, body snatchingand the disinterment of bodies was extremely hard to prosecute due to thestatus of the body. Such interference is still difficult to punish, and oftenpeople will be without remedies (Andrews, 1985). There have also been manycases where people have expressed their wishes regarding their body after deathand those wishes have not been upheld.
For example, Einstein wished to becremated and he was, but his brain was removed without his or his family’sconsent (Madoff, 2010). Furthermore, autopsy consent in Hawaii means theremoved tissue of a corpse can be used for scientific research andinvestigation, which may be against the wishes of the deceased (Andrews, 1985).Thus advantages of the property approach would allow for greater bodilyintegrity and remedies such as compensation if the body is treatedinappropriately or contrary to the person’s wishes expressed while still alive.Many cultures and religions strongly objectto the interference with the body after death, but this is typically notlegislated for.
A further advantage of ‘propertising’ the body and enablingminority religion groups and cultures to control what happens to the bodies oftheir loved ones after death is to reduce the assault of religious and culturalbeliefs (Andrews, 1985). Beliefs among groups such as Muslims, Orthodox Jewsand Navajo may not be respected by non-consensual autopsies and the taking oftissue. The law as it stands fails to sufficiently take into account theimportance of such beliefs and this may put certain members of society at agreat disadvantage. This illustrates the political nature of the law and how itreflects the interests of those in power, which may mean the interests ofminority groups are not recognised. This can have negative flow on effects, andinfluence public opinion of these minority groups. Potential of an organ marketAnadvantage that flows from a greater level of control through the propertyapproach is the potential economic benefit that bodies provide. As severalauthors contend, (Wagner, 1995; Andrews, 1985 and Campbell, 1992) modernmedicine and science has developed significantly in recent times to make organtransplants and posthumous procreation increasingly prolific, and thus thepotential commercial value of the body has skyrocketed.
One of the advantages,therefore, of constructing a legal identity of the body as property wouldarguably be allowing a person to selltheir organs after death. If this were so and a person allowed for this intheir will, the profits would presumably go to their estate for the benefit oftheir next of kin. Campbell (1992) argues that propertising the body will allowfor greater tolerance and acceptance of a market of body parts and organs, associety’s image of the body can influence policies that concern it. SeveralIS2 advantages and disadvantages flow from this opening up of a market of organs. Oneof the main advantages would be the prevention of unjust enrichment.
Unjustenrichment arguably occurs in this context through the profit made by hospitalsand researchers from organ donation. As argued by Wagner (1995), compensationfor organs and body parts to the patient themselves (to their estate as thefocus is on legal identity after death) or their family reduces the risk ofthose in the medical field receiving profit unjustly. Wagner (1995) points outthat not only would this advantageflow from extending the legal identity of the body beyond death, but if aportion of the profit made by hospitals and organ procurement organisations wasgiven to the families of donors or the donor’s estate, it would also encourageorgan donation, in turn saving many lives. In order for this to be possible,the law must change to recognise one’s property rights in one’s own body. Thiswould change the power structure currently in place and work to influencesociety’s view of the body, perhaps having ethical and moral implications whichwill be discussed shortly. While there are several advantages of thisaspect of the property approach, there are also disadvantages that must beaddressed. One of the main disadvantages are the potential harms to those thatreceive the organs and society. Andrews (1985) states that a market in organs maymean that only the rich can afford them, and that the poor may be under hugepressures to give their lives for financial incentives.
The property approachand flow on effect from a potential market may also have the disadvantage ofcommodifying the body (Naffine, 1999). Many people have strong moral objectionsto the treatment of the body as a commodity. Campbell (1992) discussespotential analogies that could be drawn to slavery or prostitution if bodiesbecome a commodity, both of which are viewed as largely negative by society asthey have the implication of dehumanisation.
It would be disadvantageous forsociety to view the body as a commodity because it could arguably lead tocoercion and exploitation (Wagner, 1995; Andrews, 1985 and Campbell 1992). Finally, a further disadvantage of extendingthe legal identity beyond death is the prospect of the market diminishingaltruism (Andrews, 1985 and Campbell, 1992). There is potential that oncepeople know how valuable their bodies are and are able to profit from this,they will do so only for that financial incentive. It is arguable whether thisis a true harm, as the result is that more lives will be saved, no matter themotivation of the seller. These are moral and ethical arguments that imply thata market would give more power to the rich and influence society’s view of thebody in an undesirable way.
Forming families posthumouslyA further implication of the property approach is the possibility of posthumousconception. Modern technology and scientific progression have increased theopportunities and methods of forming families posthumously. However, thisraises many multifaceted questions regarding the legal identity of the deadparent and the implications that extending this beyond death may have. Posthumousformation of families has different implications for the different partiesinvolved. This section of the essay looks at the advantages and disadvantagesthat affect the children and the partners of the deceased, and the implicationson the legal system. The legal father and personificationThe law has mixed approaches to whether a dead person involved in theconception of a child will be legally identified and treated as the parent. Advantagesof extending the legal identity of the deceased through personifying them asthe parent regardless of date of conception include the ability of the child toinherit from the deceased and their relatives, the child being able to sue forthe wrongful death of their dead parent and the possibility of the estate ofthe deceased being held responsible for supporting the child (Madoff, 2010).
Thereare also psychological advantages to such an approach. Children born in such amanner may appreciate the fact that their mother went to such measures toensure the man she loves was the legal father of her children (Murphy, 1995). Followingfrom this, the mother of a posthumously conceived child may also take comfortin knowing that the man she loves was able to be identified as the legalfather, this is particularly significant where the couple had previouslydiscussed having children and the death was sudden.
There are however several disadvantages tothis approach. As Madoff (2010) and Lewis (2010) point out, the distribution ofa person’s estate will not occur until the identification of all heirs iscomplete. The difficulty comes with identifying all the possible heirs whenreproductive material can be used even after years of storage. This makesfinalising estates problematic, costly and drawn out. Legislatively, in severalstates of America, unless several conditions are satisfied, such as consent ofthe deceased prior to their death to assisted reproduction, they will not belegally identified as the parent of the child (Lewis, 2010). The courts areforced to undertake balancing exercises to determine what the child willinherit (Lewis, 2010). This illustrates that the law is more concerned withpracticality and the difficulties that extending legal identity beyond deathwould have in this context, and reinforces the belief among society that thedead body cannot be personified. Reproductive RightsA concern with posthumous conception is whether it interferes with thereproductive rights of the deceased and whether to treat genetic material asproperty.
Browne (2010) discusses the implications of treating sperm asproperty that belongs to the male and whether he should be able to control howit is used. This comes back to the concept of bodily integrity and the propertyapproach. The law treats gametes differently as compared with organs, and manycountries legally allow people to sell sperm. This has influenced the waysociety views sales of this kind of matter, and it is arguably more acceptableto view it as property. Where a man has stored his sperm and left instructions,these are usually honoured. Where he has not left instructions, the wishes ofhis wife or significant other are important and usually honoured (Browne,2010).
However, the harvesting of sperm from brain-dead males for posthumousreproduction is particularly problematic, as a brain-dead person cannot giveconsent (Murphy, 1995). The person who makes the decision to harvest the spermis usually a doctor or urologist at the request of family members, and thisraises several moral and ethical questions around consent and reproductiverights. Furthermore, Leiboff (2005) states that if all decision making is leftto the living partner, there is concern that the identity and rights of thedeceased will be lost. This demonstrates the advantages of extending the legalidentity beyond death through the property approach, as a man’s wishes withrespect to his property are more likely to be honoured, and his sperm will beincluded as property if legally identified as such.
This would allow for reproductivefreedom to be upheld and reduce the intentional creation of fatherlesschildren. Leiboff (2005) states that posthumous spermharvesting for the purposes of reproduction has been treated by Australiancourts and law as immoral, arguing that they have taken such an approachbecause society views such a practice as a ‘monstrous’ behaviour of women. Basedon her arguments, this illustrates the way that the law has constructed theidentity and roles of the male and female in terms of reproduction and propertyrights beyond death.
Conclusion I have analysed the many advantages and disadvantages of extending legalidentity beyond death, touching on personification and the property approach, usingthe examples of a possible organ market and posthumous formation of families.It is clear that the law has the ability to influence and shape society’s view ofthe dead body. The property approach is a potential avenue that will upholdbodily integrity, allow for greater control and autonomy, and provide severalother psychological and economic benefits. However, moral and ethical argumentsagainst such an approach may prove to be a continual barrier to itsimplementation.