Abstract The use of the body for these and


The law has the power to
construct identities which consequently shape society’s views. This essay
addresses issues with regard to giving the body a legal identity beyond death. The
legal history of the treatment of the dead body is canvassed first to give
context and outline how the law has developed to construct and reflect
society’s beliefs about the status of a dead body. There is a specific focus on
the property approach, referring to the possibility of an organ market and the
formation of families posthumously. I conclude that extending legal identity
beyond death could be a beneficial outcome but address the fact that moral and
ethical arguments against it may hinder implementation.

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law is a powerful tool in the formation of identity that is arguably
fundamental in shaping the way society views the status and roles of a person. Constructing
a person’s legal identity gives them legal significance, which attaches to them
specific social and legal roles. This is important because having certain legal
identities leads to real consequences. This essay will first briefly look at
the different purposes of the body after death, then it will assess what it
means to have a legal identity and the current position, and finally it will examine
the implications of extending such an identity in the context of death. The
question of extending legal identity beyond death and its implications has been
the centre of many debates and legal cases over the course of history. Arguably
there are several advantages and disadvantages in doing so, and this essay aims
to address some of these, looking at the recognition of the body as a property
interest and what may follow from this, with a particular focus on the possibility
of an organ market and forming a family posthumously. After addressing the
arguments for and against extending legal identity beyond death, a conclusion
will be drawn as to which is the most persuasive stance.


Purposes of the dead body, personification
and history

body serves several purposes after death, including being a form of
psychological comfort for those grieving, a source of organs for donation, a
source of genetic material available for reproduction and scientific research
(Madoff, 2010.) The use of the body for these and other purposes can raise
several ethical, moral and legal concerns. One of the legal concerns is the
construction of identity of the dead body, and how this goes on to affect
certain practices and who benefits from this. The law is form of social
control, as it is made by those in power and therefore reflects the interests
of the people making it. Firstly, it is important to look at the history of the
legal status of the dead body, then assess the current status in order to
understand the implications of giving it legal identity. A corpse has not been
given the legal rights as a person would so have, but nor have judges been
comfortable with classifying it as property IS1 (Naffine,
1999). Historically, this view has varied, with some early statutes allowing
for punishment of the corpse of executed criminals. This leads to the
personification of the corpse, a view that does not sit well with other legal
opinion (Naffine, 1999).

The common law rule that was subsequently espoused
by the United States and that currently prevails is that a person does not have
property interests in their body once they have died (Madoff, 2010). Several
historic cases have grappled with the issue of conceptualising bodies as rights
bearing entities, beginning as early as 1614 with Haynes’s Case. In that
case, William Haynes stole the winding sheets that corpses were wrapped in
after digging up their graves and subsequently reburying the bodies. It was
held that the sheets belonged to the person who provided them and did not
belong to the dead bodies (Naffine, 1999). This is a clear expression of the
legal view that a corpse cannot own property, and thus was not able to be
personified as a rights bearing entity. The judge in that case also referred to
the body as ‘but a lump of earth’, however, the body was not treated the same
as earth in terms of property laws. This has left the identity of the body in a
confusing abeyance as it is neither personified nor viewed as property itself.

Naffine (1999) argues that the reluctance to legally personify the body stems
from the idea that society views personhood as something that comes from having
a rational will, and that with death, the will goes, thus personhood for a
corpse is unattainable, at least within the Western legal sphere. In the 1788
case of R v Lynn, the court held that
the removal of a corpse from the grave for dissection was an offence of
indecency, 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 of
the corpse and they had the right to protect it. This view was not taken in the
English courts.

Western legal thought has largely followed
the view that the body cannot be personified as a rights bearing entity due to
the long standing view that our bodies are not connected with our reasoning and
thinking capacities (Naffine, 1999).  Naffine
(1999) further argues that it is a cultural barrier to personification of the
dead body. The main advantage of personifying the corpse seems to be the
prevention of the commodification of the body, which could be an outcome of the
property approach.  


The body as a property interest

other dominant view in the legal sphere regarding the body is giving it legal
identity through recognising it as property, appropriately named the ‘property
approach’. Recognising something as a property interest brings with it several
advantages. In the American context, the government is unable to interfere with
property interests as per the Constitution (Madoff, 2010). Property rights are
valuable because they grant the individual right to possess, exclude, use,
dispose, enjoy profits and to destroy (Wagner, 1995). Many believe that a
person does have property rights in
their own body but this is arguably not the case for several reasons, including
the fact that a person does not possess the right to sell and also that there
is a lack of legal recognition of the body as property along with moral and
ethical abhorrence surrounding the idea.


Bodily Integrity

of the main advantages that comes with characterising the body as property is addressed
by Andrews (1985), who argues that a property approach upholds bodily integrity
and allows for a greater level of control, especially regarding what happens to
their organs and body after death. Logically Madoff’s (2010) contention follows;
being that the ability of the law to designate someone the owner of property
makes it easier to assert certain claims regarding that property. This results
in people having a greater level of autonomy over their bodies, and those in
control of them after they die can seek legal remedies if the corpse is treated
inappropriately. Not only does it enable greater control, but can be seen as a
form of empowerment as emphasized by Campbell (1992). The individual is
empowered by having a voice over what happens to their body after they die or a
family member or other can decide what to do with the body, instead of the
power remaining with the state or medical community. Historically, body snatching
and the disinterment of bodies was extremely hard to prosecute due to the
status of the body. Such interference is still difficult to punish, and often
people will be without remedies (Andrews, 1985). There have also been many
cases where people have expressed their wishes regarding their body after death
and those wishes have not been upheld. For example, Einstein wished to be
cremated and he was, but his brain was removed without his or his family’s
consent (Madoff, 2010). Furthermore, autopsy consent in Hawaii means the
removed tissue of a corpse can be used for scientific research and
investigation, which may be against the wishes of the deceased (Andrews, 1985).

Thus advantages of the property approach would allow for greater bodily
integrity and remedies such as compensation if the body is treated
inappropriately or contrary to the person’s wishes expressed while still alive.

Many cultures and religions strongly object
to the interference with the body after death, but this is typically not
legislated for. A further advantage of ‘propertising’ the body and enabling
minority religion groups and cultures to control what happens to the bodies of
their loved ones after death is to reduce the assault of religious and cultural
beliefs (Andrews, 1985). Beliefs among groups such as Muslims, Orthodox Jews
and Navajo may not be respected by non-consensual autopsies and the taking of
tissue. The law as it stands fails to sufficiently take into account the
importance of such beliefs and this may put certain members of society at a
great disadvantage. This illustrates the political nature of the law and how it
reflects the interests of those in power, which may mean the interests of
minority groups are not recognised. This can have negative flow on effects, and
influence public opinion of these minority groups.


Potential of an organ market

advantage that flows from a greater level of control through the property
approach is the potential economic benefit that bodies provide. As several
authors contend, (Wagner, 1995; Andrews, 1985 and Campbell, 1992) modern
medicine and science has developed significantly in recent times to make organ
transplants and posthumous procreation increasingly prolific, and thus the
potential commercial value of the body has skyrocketed. One of the advantages,
therefore, of constructing a legal identity of the body as property would
arguably be allowing a person to sell
their organs after death. If this were so and a person allowed for this in
their will, the profits would presumably go to their estate for the benefit of
their next of kin. Campbell (1992) argues that propertising the body will allow
for greater tolerance and acceptance of a market of body parts and organs, as
society’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. One
of the main advantages would be the prevention of unjust enrichment. Unjust
enrichment arguably occurs in this context through the profit made by hospitals
and researchers from organ donation. As argued by Wagner (1995), compensation
for organs and body parts to the patient themselves (to their estate as the
focus is on legal identity after death) or their family reduces the risk of
those in the medical field receiving profit unjustly. Wagner (1995) points out
that not only would this advantage
flow from extending the legal identity of the body beyond death, but if a
portion of the profit made by hospitals and organ procurement organisations was
given to the families of donors or the donor’s estate, it would also encourage
organ 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. This
would change the power structure currently in place and work to influence
society’s view of the body, perhaps having ethical and moral implications which
will be discussed shortly.

While there are several advantages of this
aspect of the property approach, there are also disadvantages that must be
addressed. One of the main disadvantages are the potential harms to those that
receive the organs and society. Andrews (1985) states that a market in organs may
mean that only the rich can afford them, and that the poor may be under huge
pressures to give their lives for financial incentives. The property approach
and flow on effect from a potential market may also have the disadvantage of
commodifying the body (Naffine, 1999). Many people have strong moral objections
to the treatment of the body as a commodity. Campbell (1992) discusses
potential analogies that could be drawn to slavery or prostitution if bodies
become a commodity, both of which are viewed as largely negative by society as
they have the implication of dehumanisation. It would be disadvantageous for
society to view the body as a commodity because it could arguably lead to
coercion and exploitation (Wagner, 1995; Andrews, 1985 and Campbell 1992).

Finally, a further disadvantage of extending
the legal identity beyond death is the prospect of the market diminishing
altruism (Andrews, 1985 and Campbell, 1992). There is potential that once
people 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 this
is a true harm, as the result is that more lives will be saved, no matter the
motivation of the seller. These are moral and ethical arguments that imply that
a market would give more power to the rich and influence society’s view of the
body in an undesirable way.


Forming families posthumously

A further implication of the property approach is the possibility of posthumous
conception. Modern technology and scientific progression have increased the
opportunities and methods of forming families posthumously. However, this
raises many multifaceted questions regarding the legal identity of the dead
parent and the implications that extending this beyond death may have. Posthumous
formation of families has different implications for the different parties
involved. This section of the essay looks at the advantages and disadvantages
that affect the children and the partners of the deceased, and the implications
on the legal system.


The legal father and personification

The law has mixed approaches to whether a dead person involved in the
conception of a child will be legally identified and treated as the parent. Advantages
of extending the legal identity of the deceased through personifying them as
the parent regardless of date of conception include the ability of the child to
inherit from the deceased and their relatives, the child being able to sue for
the wrongful death of their dead parent and the possibility of the estate of
the deceased being held responsible for supporting the child (Madoff, 2010). There
are also psychological advantages to such an approach. Children born in such a
manner may appreciate the fact that their mother went to such measures to
ensure the man she loves was the legal father of her children (Murphy, 1995). Following
from this, the mother of a posthumously conceived child may also take comfort
in knowing that the man she loves was able to be identified as the legal
father, this is particularly significant where the couple had previously
discussed having children and the death was sudden.

There are however several disadvantages to
this approach. As Madoff (2010) and Lewis (2010) point out, the distribution of
a person’s estate will not occur until the identification of all heirs is
complete. The difficulty comes with identifying all the possible heirs when
reproductive material can be used even after years of storage. This makes
finalising estates problematic, costly and drawn out. Legislatively, in several
states of America, unless several conditions are satisfied, such as consent of
the deceased prior to their death to assisted reproduction, they will not be
legally identified as the parent of the child (Lewis, 2010). The courts are
forced to undertake balancing exercises to determine what the child will
inherit (Lewis, 2010). This illustrates that the law is more concerned with
practicality and the difficulties that extending legal identity beyond death
would have in this context, and reinforces the belief among society that the
dead body cannot be personified.


Reproductive Rights

A concern with posthumous conception is whether it interferes with the
reproductive rights of the deceased and whether to treat genetic material as
property. Browne (2010) discusses the implications of treating sperm as
property that belongs to the male and whether he should be able to control how
it is used. This comes back to the concept of bodily integrity and the property
approach. The law treats gametes differently as compared with organs, and many
countries legally allow people to sell sperm. This has influenced the way
society views sales of this kind of matter, and it is arguably more acceptable
to 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 of
his wife or significant other are important and usually honoured (Browne,
2010). However, the harvesting of sperm from brain-dead males for posthumous
reproduction is particularly problematic, as a brain-dead person cannot give
consent (Murphy, 1995). The person who makes the decision to harvest the sperm
is usually a doctor or urologist at the request of family members, and this
raises several moral and ethical questions around consent and reproductive
rights. Furthermore, Leiboff (2005) states that if all decision making is left
to the living partner, there is concern that the identity and rights of the
deceased will be lost. This demonstrates the advantages of extending the legal
identity beyond death through the property approach, as a man’s wishes with
respect to his property are more likely to be honoured, and his sperm will be
included as property if legally identified as such. This would allow for reproductive
freedom to be upheld and reduce the intentional creation of fatherless

Leiboff (2005) states that posthumous sperm
harvesting for the purposes of reproduction has been treated by Australian
courts and law as immoral, arguing that they have taken such an approach
because society views such a practice as a ‘monstrous’ behaviour of women. Based
on her arguments, this illustrates the way that the law has constructed the
identity and roles of the male and female in terms of reproduction and property
rights beyond death.



I have analysed the many advantages and disadvantages of extending legal
identity beyond death, touching on personification and the property approach, using
the 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 of
the dead body. The property approach is a potential avenue that will uphold
bodily integrity, allow for greater control and autonomy, and provide several
other psychological and economic benefits. However, moral and ethical arguments
against such an approach may prove to be a continual barrier to its