The Right to Posthumous Bodily Integrity and Implications of Whose Right it is

Marquette Elder's Advisor Marquette Elder's Advisor

Volume 14

Issue 2

Spring

Article 3

2013

The Right to Posthumous Bodily Integrity and Implications of The Right to Posthumous Bodily Integrity and Implications of

Whose Right it is Whose Right it is

Hilary Young

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14 MARQ. ELDER’S ADVISOR 197 (2013)

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197

THE RIGHT TO POSTHUMOUS BODILY INTEGRITY

AND IMPLICATIONS OF WHOSE RIGHT IT IS

Hilary Young*

I.

I

NTRODUCTION

A. BODY WORLDS &BODIES THE EXHIBITION:AMORAL

CONTROVERSY

Millions of people in dozens of cities around the world have

flocked to museum exhibits of preserved human cadavers.

1

The

best-known versions of the exhibits, Body Worlds

2

and Bodies: The

Exhibition,

3

aim to be both educational and artistic. The dead are

posed as though they were riding a skateboard or performing a

trapeze routine. One man is displayed as though his body were

exploding, so that the viewer can see many anatomical systems

simultaneously. A fetus still inside its dead mother is on view,

and in a Body Worlds exhibit in Berlin, bodies were posed as

though they were having sex. Stripped of flesh, the copulating

cadavers caused controversy, which is nothing new for these

boundary-pushing exhibits.

4

* Hilary Young is an Assistant Professor at the Faculty of Law at the

University of New Brunswick. The author wishes to thank Anne

Alstott and the students in Harvard’s Legal Scholarship seminar for

helpful comments on this work. She especially wishes to thank Glenn

Cohen for his valuable feedback on drafts of this article.

1. See generally Lisa Giunta, The Dead on Display: A Call for the International

Regulation of Plastination Exhibits, 49 C

OLUM.J.TRANSNAT'L L. 164 (2010) (giving

background on the exhibits and the legal and ethical issues raised by these exhibits).

2. See generally B

ODY WORLDS, http://www.bodyworlds.com/en/prelude.html

(last visited May 14, 2013).

3. See generally B

ODIES THE EXHIBITION, http://www.bodiestheexhibition.com

(last visited May 14, 2013).

4. Jason Rhodes, Body Worlds Plans Cadaver Show Dedicated to Sex, R

EUTERS,

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There are essentially three types of moral objection that can

be levied against this kind of display of human corpses. A

dignitary argument might claim that it is undignified to display

human bodies in this manner or to display bodies for profit.

That is, it harms the living human public to treat our dead in this

way. Such dignitary concerns explain why, for example, we

legally require the dead to be disposed of (usually buried or

cremated) in a dignified manner or why states have criminal

prohibitions on the undignified treatment of a corpse.

5

As a

society, we recognize the possibility that undignified treatment

of the dead can harm the living public as a whole. This potential

criticism of preserved cadaver exhibits may be independent of

any prior consent by the deceased. If one thinks it undignified to

put corpses on public display for profit, one may think this

regardless of whether the deceased consented (although one

may think it less undignified if there was prior consent).

A second potential objection to Body Worlds-type displays of

human cadavers is the harm such use of corpses could cause to

the friends and family of the deceased. Although bodies are

rendered anonymous by removing skin, hair, and other

identifying features, families could object to the very idea of

their loved one’s remains suffering this fate. This differs from

the indignity example above in that the harm here is not to

humanity in general, but rather to specific individuals by virtue

of their relationship with the deceased. Friends and family have

a well-recognized interest in the treatment of loved one’s mortal

remains and this interest is recognized in laws that grant

possessory rights in a corpse to next of kin and allow next of kin

to make decisions about the treatment of the body – either

regardless of, or in the absence of, the expressed wishes of the

deceased.

6

A third potential objection to preserved cadaver exhibits

relates to harm to the individuals themselves, either before or

Sept. 11, 2009, http://www.reuters.com/article/idUSTRE58A4Z220090911.

5. See discussion infra Part IV.

6. See id.

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after their death. This potential objection best explains the policy

of seeking the individual’s consent. In fact much of the

controversy over Bodies: The Exhibition relates to a lack of prior

consent by the people whose bodies were used. For example,

New York governor Andrew Cuomo reacted with concern to the

fact that Premier Exhibitions, the company responsible for

Bodies: The Exhibition, was unable to establish consent for this use

of the bodies.

7

It was alleged that some of these bodies were

those of executed Chinese prisoners.

8

This third potential objection is not unique to the display of

cadavers: there are many laws that reflect the importance of

posthumous bodily integrity by granting individuals the right to

make decisions about the treatment of their future corpses.

These include organ donation law and laws that allow one to

choose burial or cremation, as well as laws governing Body

Worlds-type displays.

9

This article examines such laws granting

individuals the right to make decisions about the treatment of

their future corpses. It asks whether these laws aim to protect

only the rights of living individuals in order to give them

confidence their wishes will be respected, or whether they

protect the dead as well. It also examines the implications for

policy of whether the dead are viewed as capable of having

rights in relation to their bodies. For example, if all rights are

viewed as ending at death, it may be easier to justify procuring

organs from those whose wishes about organ donation are

unknown, even in the absence of consent.

It is, I think, intuitively obvious that the prior wishes of the

7. Press Release, N.Y. State Attorney General, Cuomo Settlement With

“bodies. . . .the Exhibition” Ends the Practice of Using Human Remains of Suspect

Origins (May 29, 2008), available at http://www.ag.ny.gov/press-release/cuomo-

settlement-bodies-exhibition-ends-practice-using-human-remains-suspect-origins.

See also Sewell Chan, ‘Bodies’ Show Must Put Up Warnings, N.Y.

T

IMES CITY ROOM

BLOG (May 29, 2008, 12:14 PM), http://cityroom.blogs.nytimes.com/2008/

05/29/bodies-exhibit-must-put-up-warnings/.

8. Press Release, N.Y. State Attorney General, Cuomo Settlement With

“bodies. . . .the Exhibition” Ends the Practice of Using Human Remains of Suspect

Origins (May 29, 2008), available at http://www.ag.ny.gov/press-release/cuomo-

settlement-bodies-exhibition-ends-practice-using-human-remains-suspect-origins.

9. See discussion infra Part IV.

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deceased are morally relevant to certain treatments of human

remains: it is somehow wrong to put Chinese prisoners’ bodies

on display without consent, or perhaps to bury someone who

wanted to be cremated. But it is less clear why that should be so.

How is the non-consensual display of cadavers, or burying

someone who wanted to be cremated, wrongful? The deceased

presumably has no awareness of her present condition or any

capacity to be affected by it; and, it, therefore, is not obvious that

she can be harmed.

10

In addition, if we assume that the Chinese

prisoners or the people whose fate it was to be buried never had

any inkling that this was what was in store for their remains, the

fact of their display or burial had no effect on them while they

were alive.

B.

L

EGAL RIGHTS OF INDIVIDUALS REGARDING TREATMENT OF

THEIR CORPSES

There are at least three reasons why lawmakers would

recognize a legal right of individuals to make decisions about

the treatment of their own corpses. First, we may think that the

dead have an ongoing interest in the integrity of their dead

bodies. Living individuals have an interest in their bodily

integrity that grounds rights against interference without

consent. We may conceive of this interest in bodily integrity as

surviving death, such that to contravene people’s prior wishes is

to harm the dead. The theory that the dead have interests that

can ground rights is controversial, but it may be the easiest to

reconcile with some laws granting rights to make decisions

about one’s future cadaver.

Second, we may grant the ability to make decisions about

the treatment of one’s own corpse because living people care

about what happens to their bodies after death and we want to

give them confidence that their wishes will be respected after

death. On this view, the dead need not have rights. The reason

10. There is actually philosophical controversy over whether the dead can be

harmed. This possibility will be discussed in detail in continuing parts.

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for respecting people’s wishes, even after they are dead, is to

give comfort to the living. This is uncontroversial: we want to

give the living confidence that their wishes will be respected,

regardless of whether we also view the dead as having interests

and rights in their own right.

Third, we may protect an interest in posthumous bodily

integrity because, as a society, we wish to see ourselves as

people who respect the wishes of the dead. This could be

because we believe the dead have moral interests and we want

to act morally by respecting those interests, or because we think

the living will benefit if we respect the prior wishes of the dead.

It could be because we promise people that we will respect their

wishes, and we want to be a society that keeps our promises. It

could also be because we perceive that respecting the wishes of

the dead honors the lives of those who have died. The reasons

need not be determined: what matters on this approach is that

the importance of an interest in posthumous bodily integrity

derives, at least in part, from the fact that we as a society want to

see ourselves in a certain light: it is society that benefits by

respecting the wishes of the dead.

The focus of this article is the first two reasons for

protecting posthumous bodily integrity. The third is largely

ignored, just as other competing interests in the treatment of

corpses (those of potential organ recipients, for example, or of

the families of the deceased) are largely ignored. The aim of the

article is to examine the implications of whether the dead have

an interest in posthumous bodily integrity, or whether the

interest in bodily integrity is extinguished by death.

C.

L

IVING VERSUS DECEASED INTEREST HOLDERS

This article, therefore, considers two potential interest-

holders: the living individual in relation to her own future

cadaver, and the deceased “individual” (for lack of a better

term) in relation to her (present) cadaver. It then addresses the

implications of whose interests the law aims to protect when it

grants individuals the right to make binding decisions about the

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treatment of their corpse. This is not to deny that others have an

interest in the treatment of a corpse: surviving family and

potential organ recipients are just two examples. However, the

question at issue is: what follows from a view that the dead do,

or do not, have an ongoing interest in their posthumous bodily

integrity?

While alive, we all have an interest in bodily integrity that is

protected by law. For example, the law prohibits non-

consensual touching: any physical interference without consent

is potentially criminal assault and tortious battery.

11

The laws

that protect a person’s interest in bodily integrity grant legal

rights to living individuals. That is, perhaps obviously, the

rights-holder is the individual whose body is at stake. As with

the treatment of dead bodies, other individuals and society, in

general, may have an interest in the treatment of other peoples’

living bodies. For example, society as a whole has an interest in

ensuring that living human bodies are treated with dignity. As a

result, some interferences cannot legally be consented to, such as

serious bodily harm. The existence of competing interests does

not negate the fact that individuals have an interest in what

happens to their own bodies and that this interest is, to varying

degrees, protected by law.

That one’s interest in one’s body, and related legal

protection of the interest, should also extend to one’s dead body

is not obvious. Yet few interferences with a corpse, other than

some kind of dignified disposal, are permitted without consent –

either the prior consent of the deceased or substitute consent of

the next of kin. This is perhaps not so surprising when we

consider how much many people care about what happens to

their bodies after they die. Many care deeply about whether

their bodies are buried or cremated, the subject of medical

research, or treated with dignity, and whether their organs are

removed for transplant.

12

11. RESTATEMENT (SECOND) OF TORTS §§ 13, 18 (1965).

12. A poignant example can be found in Drew Gilpin Faust’s excellent book on

death in the Civil War. One soldier worried: “It is dreadful to contemplate being

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In granting individuals the right to decide what happens to

their bodies after their death, the law creates rights-holders in

relation to those bodies. This may seem obvious – even

tautologous – but a question arises how to characterize the

holder of this legal right. There are at least two ways of

conceiving of these rights-holders. First, they are only living

individuals whose bodies will become the corpses at issue. At

the moment of death, that person’s legal right to posthumous

bodily integrity would cease because there is no longer any

entity with moral status to possess that particular right. This

does not mean that the law could not still be enforced, but

enforcement would only serve the function of giving confidence

to other living individuals that their own wishes will be carried

out. There would be no legal obligation to the deceased on the

basis of a right to posthumous bodily integrity.

Alternately, the legal right to posthumous bodily integrity

could belong to dead “individuals” themselves: in other words,

people’s right to posthumous bodily integrity could survive

death. Several scholars consider the dead to be capable of

having moral status and of possessing legal rights, and the

article considers the basis on which the dead could be

considered to have an interest in posthumous bodily integrity

and what implications would follow for the law if they had such

an interest.

Whether a right to posthumous bodily integrity belongs to

the living individual only or survives death may seem a rather

fine, and perhaps irrelevant distinction: the relevant laws apply

regardless. However, in analyzing these laws from the

perspective of the different potential rights-bearer, three types of

insight emerge. First, the reasons for having laws protecting

posthumous bodily integrity are different depending on who the

rights-bearers are. Second, to the extent that some laws are more

consistent with an approach that views the dead as rights-

killed on the field of battle without a kind hand to hide one’s remains from the eye

of the world or the gnawing of animals and buzzards.” D

REW GILPIN FAUST,THIS

REPUBLIC OF SUFFERING:DEATH AND THE AMERICAN CIVIL WAR 63 (2008).

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holders versus only the living (or vice versa), this may help

elucidate whose interests lawmakers are trying to protect.

Third, if one has a view about whether the dead are capable of

having rights, this will have implications for how one thinks

laws protecting posthumous bodily integrity should be

structured.

The article’s approach is largely positive rather than

normative. Although it is my own view that the dead are not

capable of being rights-bearers, the article’s primary goal is not

to defend that position but rather to explore the consequences of

whether they are, or not. In addition, this is not an article about

balancing competing rights or interests in the bodies of the dead.

It is not concerned, for example, with whether individuals

should be allowed to decline to be organ donors or whether

displays of plastinated corpses should be banned on the basis

that they are undignified. Although the interest in, and legal

right to, posthumous bodily integrity are central to this article,

this should in no way be interpreted as suggesting that

individuals’ wishes regarding their corpses should always be

respected – either as a moral or a legal matter.

D.

P

URPOSE AND DIRECTION OF THIS ARTICLE

The article is structured as follows. Part II introduces the

ways in which someone could have an interest in the treatment

of her corpse. As noted above, interests can be conceived of as

terminating on an individual’s death or as surviving death. Part

II explores the philosophical basis on which living individuals

can be conceived of as having legal rights in relation to things

that happen after their deaths, as well as the basis on which the

dead can be conceived of as having legal rights.

Part III examines the moral implications for an interest in

posthumous bodily integrity when the interest belongs to the

dead or only to the living. Specifically, it considers the

difference the identity of the interest-bearer makes when the

individual’s prior wishes were express, inferable, or unknown.

For example, if only the living have a right to posthumous

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bodily integrity, and enforcement after death simply serves to

give confidence to other living individuals that their own wishes

will be carried out, it is easier to justify a policy that treats the

corpses of those whose wishes are unknowable differently than

those of deceased people whose prior wishes were known.

Part IV examines specific laws that grant a right to

posthumous bodily integrity. In particular, it discusses laws in

relation to posthumous organ donation, medical education and

research using cadavers, the requirement of consent for

posthumous reproduction, the ability to refuse an autopsy, and

the ability to choose burial versus cremation. After

demonstrating that these laws grant a right to posthumous

bodily integrity, the analysis in Part IV reveals that it matters

who holds the rights. Specifically, the weight to be given to

competing interests often should depend in part on whether the

dead have an interest in posthumous bodily integrity. This is

not a question that appears to have been considered in drafting

or enacting legislation, and I suggest a change to anatomical gift

legislation that reflects my own view that the dead cannot have

rights. If, however, the dead can have a right to posthumous

bodily integrity, laws permitting the display of ancient corpses

are harder to justify.

II.

P

OSTHUMOUS INTERESTS

A.

I

NTRODUCTION AND TERMINOLOGY

To set the stage for an analysis of a legal right to

posthumous bodily integrity, it is important to consider on what

basis there can be rights in relation to dead people’s bodies.

There is no question that the general public and living family

members can have legal rights in relation to others’ cadavers

because they are living people with ongoing interests in the

treatment of those cadavers. (Assume for the moment that

interests ground rights, which will be addressed below.) Less

obvious is how a person can have an interest in the treatment of

her own cadaver. After all, the person and the cadaver will

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never coexist, such that it is not obvious why a person has an

interest in the treatment of her corpse – either before or after her

death. The argument might go that I should not have a present

interest in what happens after my death because I will not be

around to be affected by those events, and after I am dead I will

not have an interest in anything because there will not be a “me”

to have interests at all.

That said, there are two ways in which such postmortem

interests can be justified: first, living people are said to have an

interest in certain events that occur after their deaths because

they may be part of a person’s overall life plan; and second,

some construe the dead themselves as having a limited set of

ongoing interests. While the first justification is relatively

uncontroversial, the second is not. Some deny that the dead

have sufficient moral status to possess a legal right to

posthumous bodily integrity and, therefore, should not be

viewed as having that right. From this view it follows that the

previous wishes of the dead can be ignored without violating

any rights of the dead themselves. However, respecting the

wishes of the dead may be desirable insofar as it gives

confidence to the living that their own wishes will be carried out

(or for other reasons related to fulfilling the interests of

surviving family or society as a whole).

It is important to be clear that the relevant question is not

one of legal standing or enforcement of the law – the dead have

no legal standing – but another legal entity, such as the

deceased’s estate, could conceivably seek to enforce a right to

posthumous bodily integrity. For example, one could imagine

the estate of a deceased person suing to prevent certain medical

research on a corpse based on the provisions of a deceased’s

will. Rather, at issue is the nature of legally-protected interests

in the treatment of one’s corpse.

In addition, it is worth noting that the fact that corpses are

legally protected does not mean that corpses have legal rights

any more than the fact that heritage buildings are legally

protected means that those buildings have legal rights. Whose

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rights a law protects is a question of who is its subject rather

than its object; “for whom” the law is enacted rather than “in

regard to” what.

13

The fact that corpses are legally protected is

therefore not determinative of whether only the living are rights-

holders.

The question addressed below is what implications flow

from the view that the law treats the dead as rights-holders

versus the view that it only treats the living as rights-holders.

Again, the article is not primarily attempting to answer the

controversial philosophical question whether the dead are

capable of being rights-holders. Rather, it focuses on the

implications for the law given both approaches.

B.

A

N INTERESTS-BASED APPROACH TO RIGHTS

Rights are notoriously difficult to define and are

conceptualized differently by different scholars. The various

approaches, including Hohfeld’s, Hart’s Will Theory (also

known as Choice Theory), and interest-based theories are

discussed at length in the jurisprudence literature and this

article will only address interests-based theories in any detail.

What is important to note is that some of these theories are

less easily reconciled with the view that the dead are capable of

having rights.

14

Hart’s Will Theory, for example, requires that

rights-holders have the ability to make reasoned decisions,

15

which would obviously be problematic for the claim that the

dead can be rights-bearers and would also potentially rule out as

rights-holders some of the living, such as those in a persistent

vegetative state. Other theories, however, view non-humans,

13. Matthew H. Kramer, Do Animals and Dead People Have Legal Rights?, 14

CAN.J.L.&JURIS.29,39 (2001).

14. Kirsten Smolensky makes the same point in her own work. See Kirsten

Rabe Smolensky, Rights of the Dead, 37

H

OFSTRA L. REV. 763, 769–72 (2009).

15. See Leif Wenar, Rights, T

HE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Fall

2011 ed.), http://plato.stanford.edu/archives/fall2011/entries/rights/ (last reviewed

Jul. 2, 2011) (outlining a general discussion of Hart’s Will Theory). See also Kramer,

supra note 13, at 29.

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animals, and even trees as potential rights-bearers.

16

Thus,

depending on one’s view of the nature and scope of rights, it

may, or may not, be possible for the dead to have them. Since

the aim of this article is not primarily to take a normative

position as to whether the dead have rights but rather to

examine what it might mean if they do or do not, I take an

approach to rights that is compatible with the dead being rights-

bearers, namely an interests-based approach.

Just as there is no agreement as to the best approach to

rights, even within an interests-based approach there is no

agreement as to the precise role of interests in relation to legal

rights. What interest theories of rights have in common is the

view that an entity has a right when others have a duty to

protect one of its interests.

17

Thus, “legal rules conferring rights

promote the right-holder’s well-being represented by her legal

interests.”

18

Interest theories have been promoted by scholars

such as Bentham, Raz, Feinberg, and Kramer.

“Interests” refer to those moral claims of an entity,

19

the

violation of which is a moral wrong, all things being equal.

Some interests are more deserving of, and may receive more

legal protection, than others. There should be overlap between

interests and legal protections (for example, to deliberately

injure a person both violates that person’s interest in bodily

integrity and is contrary to the law), but the overlap will never

be absolute for several reasons, including the fact that interests

are neither universally agreed upon nor static. In addition,

interests often conflict, such that it is impossible to respect

everyone’s interests simultaneously. Balancing interests is

therefore important in lawmaking.

16. See, e.g., generally CHRISTOPHER D. STONE,SHOULD TREES HAVE STANDING?

(1996).

17. George W. Rainbolt, Rights Theory, 1 P

HIL.COMPASS 11, 11 (2006).

18.

D

ANIEL SPERLING,POSTHUMOUS INTERESTS:LEGAL AND ETHICAL

PERSPECTIVES 71 (2008).

19. For now, I deliberately avoid suggesting that only persons may hold

interests, since the subject of this inquiry is whether the dead can be interest-

holders.

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Consider two different interests-based approaches to rights.

Joel Feinberg’s theory is that in order to be capable of having

legal rights one must be capable of having interests.

20

For him,

to have an interest means to have a stake in something.

21

Interests are related to, but narrower than, wants and desires, in

that only deep-rooted wants can be interests.

22

As a result,

having an interest presupposes having “rudimentary cognitive

equipment.”

23

Matthew Kramer’s approach is broader. According to him,

any entity that can benefit, in a general sense, can have interests.

X has an interest in an event or state of affairs if that “event or

state of affairs will improve X’s condition or will avert a

deterioration therein.”

24

Unlike Feinberg’s approach, Kramer’s

does not require that interest-holders have rudimentary

cognitive equipment. Therefore, inanimate objects, such as

buildings, can have interests.

However, the difference between Feinberg and Kramer’s

approaches is less than it appears, because whereas Feinberg’s

interest-holders are capable of being rights holders, only a

subset of Kramer’s interest-holders is capable of having rights.

Thus, even though many more entities count as interest-holders

in Kramer’s approach than in Feinberg’s, many of Kramer’s

interest-holders are not rights-holders.

According to Kramer, possessing interests is a necessary but

insufficient condition for an entity to have the status of a legal

rights-holder. The moral status of the entity must be considered,

and Kramer evaluates the moral status of entities in comparison

to entities with paradigmatic moral status – namely competent

adult humans.

25

Feinberg takes moral status into consideration

20. Joel Feinberg, The Rights of Animals and Unborn Generations, in RIGHTS,

JUSTICE, AND THE BOUNDS OF LIBERTY 165, 167 (1980) [hereinafter Feinberg Rights]

(outlining the interests principle).

21. Joel Feinberg, Harm and Self-Interest, in R

IGHTS,JUSTICE, AND THE BOUNDS

OF

LIBERTY 45, 45 (1980) [hereinafter Feinberg Harm].

22. Id. at 46.

23. Feinberg Rights, supra note 20, at 168.

24. Kramer, supra note 13, at 33.

25. Id.

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in determining who is an interests-holder, and considers

interest-holders to be potential rights-holders, while Kramer

considers moral status only after status as an interest-holder has

been established.

Kramer provides the example of a law that forbids walking

on the grass.

26

According to him, the lawn and perhaps each

blade of grass have interests, but they do not have legal rights.

Rather, the holder of rights in the context of this law is the public

for whose benefit the law is maintained.

27

The grass does not

have legal rights because it is too dissimilar to living people.

According to Kramer, a rights-holder is someone for whose

benefit a law is enacted and it does not make sense to think that

a law forbidding walking on the grass is enacted for the grass’

benefit.

28

Feinberg’s approach to the same example would

presumably be that grass does not have interests, because it

doesn’t have a stake in whether it is trampled or even in whether

it lives or dies, and therefore the grass cannot have rights.

According to him, legal rights are a kind of claim against

someone and only those with interests can have such claims.

29

Kramer’s approach can be criticized for taking too broad a

view of interests. If “interest” is to have any moral significance,

then inanimate objects should not be viewed as having interests

simply because they can be improved or destroyed. Such an

approach grants some kind of moral status to almost every

tangible thing, although not necessarily very much moral status

and not necessarily the capacity to bear legal rights. On the

other hand, Kramer may not intend for interests to have any

inherent moral significance: the question of moral significance

may only arise at the stage of determining whether someone (or

something) is a rights-holder.

Neither of these interests-based approaches to rights

requires the ability to enforce those rights oneself. Nor does the

26. Id. at 36.

27. Id.

28. Id.

29. Feinberg Rights, supra note 20, at 167.

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nature of what is protected dictate who the rights-holder is: a

law can protect something without that something being the

rights-holder, as is the case with lawns and heritage buildings in

the examples above. Note also that just because an entity is

capable of having legal rights does not mean that all laws in

relation to it necessarily protect its own interests. For example,

we can proscribe indignities to a corpse not only to protect the

deceased’s own interests (assuming for the moment that it can

have interests), but to protect the public’s interest in the

dignified treatment of the dead.

To summarize, according to interest theories of rights,

having interests is the basis for having legal rights (although

having interests may not be a sufficient condition for having

legal rights) and competent human adults are paradigmatic

rights-holders. The latter is presumably true of all theories of

rights, but it is an important aspect of Kramer’s approach to

creating rights from interests.

C.

I

NTERESTS OF THE LIVING IN THE TREATMENT OF THEIR

CORPSE

Given an interests-based approach to rights, living

individuals can have an interest in what happens to their bodies

after they die, even though those people will no longer exist at

the relevant time. The interests of the living in what will become

their corpse are what Dworkin calls critical interests.

30

He draws

a distinction between critical and experiential interests:

experiential interests are those that relate to experience and state

of mind, while critical interests reflect critical judgments about

what makes life good.

31

The ability to shape our lives according

to our critical and experiential interests, according to Dworkin,

is central to the value of autonomy.

32

Decisions about our living

bodies may reflect experiential interests (for example, the desire

30. RONALD DWORKIN,LIFE’S DOMINION:AN ARGUMENT ABOUT ABORTION,

E

UTHANASIA, AND INDIVIDUAL FREEDOM 201–02 (1993).

31.

Id. at 201.

32. Id. at 224.

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to avoid pain) or critical interests (a religious interest in not

having a medical procedure). The living can have no

experiential interests in relation to post-death events, since death

and experience are mutually exclusive. However, they may

have critical interests in relation to such events.

For example, Donald can have a critical interest in ensuring

that his family is financially secure during his lifetime but also

after he is dead. He may also have a critical interest in

preserving the environment for future generations.

Philosophical theorists Allen Buchanan and Dan Brock draw a

distinction, similar to Dworkin’s, between experiential interests

and “surviving interests,” which are essentially those critical

interests that relate to future events.

33

They conclude that such

interests may relate to post-death events.

34

Thus, “[w]hat

happens after death can (depending on the particular person’s

own idea of self-development) complete the development of the

self.”

35

The existence of critical interests in relation to post-mortem

events means not only that people care what happens after they

die, but also that they have a moral claim to determining what

happens after they die. Since critical interests implicate our

autonomy – our interest in making decisions about ourselves –

we can have a present interest in post-mortem events.

36

These

post-mortem events can include the treatment of our bodies after

death. However, the fact that we have a moral claim does not

mean that that claim must always be respected or that it must be

legally protected. One’s interest in autonomy is not absolute.

When it comes to organ donation, for example, other entities

with an interest in the treatment of a corpse include the

surviving family, potential organ recipients and their families,

and society at large (which has a stake in promoting health and

33. ALLEN E. BUCHANAN &DAN W. BROCK,DECIDING FOR OTHERS:THE ETHICS

OF

SURROGATE DECISION MAKING 164 (1989).

34.

Id. at 163.

35. T. M. Wilkinson, Individual and Family Decisions About Organ Donation, 24

J.

A

PPLIED PHIL. 26, 31 (2007).

36.

R

OBERT M. VEATCH,TRANSPLANTATION ETHICS 146 (2000).

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in minimizing healthcare costs).

Living individuals can therefore have critical interests in the

treatment of their corpses. These interests can ground legal

rights. What is less clear is whether those interests survive

death, such that the dead themselves can be construed as having

an interest in their posthumous bodily integrity. If so, then all

things being equal, we should carry out the wishes of the dead,

in part, because doing so respects interests that persist. But

assuming for the moment that the only potential interest an

individual could have in her own corpse is the critical interest of

the living individual in her future cadaver, that interest would

end with the individual’s death. It would follow that there is no

moral obligation to the deceased to actually carry out an

individual’s wishes after her death. Rather, any interest a

person had in the treatment of her corpse could only be fulfilled

or violated during her life: individuals’ moral claims in relation

to their bodies would expire at death.

Notwithstanding the inability to harm a person’s critical

interests after her death,

37

there may be reasons for respecting

the prior wishes of the dead even if only the living have

interests. If people’s wishes are not actually respected after

death, two things follow. First, if a person or the state assures

another that her body will be treated in a particular way to break

that promise is immoral, even though it is not a violation of the

deceased’s interests.

38

It is a wrong, but not a wrong to the

deceased. (For present purposes I ignore any distinction

between the morality of an individual breaking a promise versus

a state breaking a promise.)

Second, if an individual’s post-mortem wishes are not

37. Those who take the view that the dead have interests may object to the

assertion that a person’s critical interests cannot be harmed after death. This

possibility will be discussed in the following parts. For now, the assertion can be

read as meaning that a living person’s critical interests cannot be harmed after

death because the living person no longer exists. Whether the dead person assumes

those interests is, for now, an open question.

38. See generally Elinor Mason, We Make No Promises, 123 P

HIL.STUD. 33

(2005), for a discussion of the morality of breaking promises, including deathbed

promises.

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systematically respected, living individuals will have good

reason to doubt that their own wishes will be respected after

their death. Their critical interests in the treatment of their

corpses can therefore not be satisfied. Thus, the claim that living

individuals have an interest in what happens to their corpses

rests not on interests that survive death, but rather on the benefit

to them of knowing, while they are alive, that their wishes will

be respected.

A living person’s legal right to posthumous bodily integrity

can therefore be grounded in a critical interest, while alive, in the

treatment of her corpse. We care about our corpses because they

are closely linked to our living bodies, which are central to our

concepts of ourselves and to our autonomy while alive.

D.

I

NTERESTS OF THE DEAD IN THE TREATMENT OF THEIR

CORPSE

The argument above that the living have critical interests in

the treatment of their future corpse is relatively uncontroversial.

Much more controversial is the issue of whether those interests

can survive death. Phrased differently, the question is whether

the dead themselves can have interests or rights in the treatment

of their bodies. The possibility that the dead have interests

raises two problems, known as the “experience problem” and

the “problem of the subject.”

The experience problem is essentially that because the dead

have no self-awareness or ability to experience anything, they

cannot be harmed, they cannot have a stake in anything, and

their interests while alive can no longer be thwarted.

39

(“Harm”

is used here to mean to set back or not fulfill one’s interests; and,

the fact that different theorists have different conceptions of

what counts as an interest should not affect the analysis.) In

39. See David L. Perry, Ethics and Personhood: Some Issues in Contemporary

Neurological Science and Technology, S

ANTA CLARA UNIVERSITY,

http://www.scu.edu/ethics/publications/submitted/Perry/personhood.html (last

visited May 23, 2013). Perry’s lecture, found on the Santa Clara webpage, also

discusses the experience problem.

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essence, the argument is that the dead no longer have interests

because of their inability to be harmed. However, this assumes a

subjective approach to harm that is itself controversial. It

assumes that awareness by the subject of harm is a necessary

condition for harm: one is only harmed if one knows about the

harmful event or fact. If Donald has an interest in the financial

wellbeing of his children, for example, on a subjective approach

to harm it is not sufficient that Donald’s children are all poor for

him to be harmed – he must know that they’re poor. A number

of scholars, such as L. W. Sumner, take a subjective approach to

harm.

40

Others are willing to concede an objective approach to

interests even if they do not ultimately believe the dead can have

interests.

41

Thus, on a subjective approach, it is difficult to conceive of

the dead as having posthumous legal rights. If harm to an

interest requires the harm to be experienced, and the dead are

incapable of experiencing anything, it follows that the dead are

incapable of having their interests harmed. If there is no

prospect for the violation of an interest, there would seem to be

no foundation for a legal right to have that interest protected

within an interest-based theory of rights.

Some scholars, however, consider harm to be at least

partially objective. Although one’s interests, themselves, are

subjectively determined (by virtue of what specific individuals

value),

42

whether or not those interests have been thwarted (in

other words, whether one has been harmed) can be determined

objectively.

43

On such an approach, Donald is harmed if he has

40. See generally L. W. SUMNER,WELFARE,HAPPINESS AND ETHICS (1996).

Sumner’s account is one of welfare rather than harm, but since interests are defined

in terms of welfare and harm is defined in terms of interests, this poses no problem.

Sumner is of the view that we are not harmed when our desires are thwarted unless

we have awareness of the fact. See id. at 113–37.

41. Ernest Partridge, Posthumous Interests and Posthumous Respect, 91 E

THICS

243, 247 (1981).

42. And even that is controversial. Some maintain that what is good for us can

be at least partially determined on an objective basis. See S

UMNER, supra note 40, at

45–80.

43. See, e.g., Feinberg Harm, supra note 21, at 61, 63.

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an interest in his children’s financial well-being, and his children

are poor, regardless of whether Donald knows they are poor.

Feinberg’s approach to harm is objective.

44

He claims that

we are harmed when our interests are thwarted, regardless of

whether we are aware of the harm. For example, Feinberg

considers libeled people to be harmed even if they are never

made aware of the harm to their reputations. An individual is

harmed if she is the owner of a harmed interest regardless of

whether she feels harmed.

45

Whereas the subjective approach to the experience problem

made it difficult to conceive of the dead having posthumous

interests and therefore posthumous rights, such rights are

clearly possible on an objective approach: by eliminating the

need for harm to be experienced you eliminate the experience

problem. Feinberg concludes that our interests can survive

death, in part, because they are objective.

The second and more difficult problem for any theory in

which the dead have interests is the problem of the subject. If

the deceased person no longer exists, and her interests are

thwarted, we can reasonably ask whose interests have been

thwarted. Who has been harmed by events that take place after

death? There are several possible approaches to the problem of

the subject. One, once held by Feinberg but later rejected by

him, is to say that what is harmed is the interest itself, not the

person whose interest it is.

46

This is, essentially, to reject the

need for a subject at all. The interest can continue to exist when

the person no longer does: “[w]hen death thwarts an interest,

the interest is harmed, and the harm can be ascribed to the man

who is no more, just as his debts can be charged to his estate.”

47

Thus, the dead can have rights by virtue of the fact that interests

exist independent of that of the person whose interests they

are/were. Further, those interests can ground rights of the

44. Id. at 63.

45. Id. at 61.

46. Id. at 65–68.

47. Id. at 64.

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deceased because of the connection between the interest and the

person that was.

Feinberg later rejected this view, however, in favor of the

ante-mortem person approach, which is similar to George

Pitcher’s view of posthumous interests. On the ante-mortem

person view, the dead retain an interest in those things that

relate to the important desires that were held by those people

before they died – the ante-mortem people.

48

The dead can be

harmed if those desires are thwarted after death. Pitcher

distinguishes between the post-mortem dead – the mere dust

that cannot be harmed – and the dead as reflecting the ante-

mortem persons that they were.

49

Scholars have criticized theories of posthumous interests

based on the ante-mortem person and her interests. In order to

avoid retroactivity (the person being harmed before the harmful

event actually occurs), Feinberg and Pitcher’s approach to

posthumous interests relies on the posthumous harm having

been a harm all along – the fact that the harm will eventually

occur means that all along the individual was playing a “losing

game.”

50

Joan Callaghan views this approach as simply

bolstering the argument that the dead can have no interests.

According to her, what Feinberg and Pitcher are essentially

arguing is that the living can be harmed by the fact that their

wishes will not be fulfilled after death.

51

Another approach to the problem of the subject is that of

Kramer. Recall that Feinberg required interests-bearers to have

some kind of cognitive equipment, and so any theory of his in

relation to posthumous interests would have to address that

issue.

52

Feinberg did so by relying on ante-mortem people who

48. See George Pitcher, The Misfortunes of the Dead, 21 AM.PHIL.Q. 183, 184

(1984).

49. Id.

50. J

OEL FEINBERG,HARM TO OTHERS 91 (1984).

51. Joan C. Callahan, On Harming the Dead, 97 E

THICS 341, 345–46 (1987). For

more arguments against the dead having interests, see generally Malin Masterton et

al., Queen Christina’s Moral Claim on the Living: Justification of a Tenacious Moral

Intuition, 10 M

ED., HEALTHCARE &PHIL. 321 (2007).

52. See discussion supra Part II.B.

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had cognitive capacity. Kramer’s approach, on the other hand,

does not require subjects to have cognitive capacity in order to

have interests.

53

Rather, subjects must merely have the capacity

to be affected (without necessarily having awareness or

experience of the effect) to have interests. On his view buildings

and grass can have interests and so, clearly, can the dead.

However, having interests isn’t sufficient to ground rights

on Kramer’s view, so whether the dead can have posthumous

rights depends on the moral significance of their interests. That,

in turn, is based on the morally relevant resemblance between

the subject and competent adult humans.

54

In his article Do

Animals and Dead People Have Legal Rights, Kramer concludes that

the dead can have legal rights if we “subsume the aftermath of

each dead person’s life within the overall course of his or her

existence”.

55

If we consider the ways in which the dead continue

to influence the living – through their possessions and their

persistence in people’s memories, for example – we can conceive

of them as still having an existence, and therefore as being

sufficiently analogous to competent adult humans and capable

of having rights. On this view, the subject of posthumous

interests is the dead, but only insofar as the dead have continued

existence in the lives of living people.

The nature of the subject of posthumous interests has

significant implications for the scope and nature of those

interests and the resulting rights. One thing that seems to follow

from all approaches to the subject of posthumous interests is that

those interests are a subset of the interests held by the living

person before her death. I am aware of no theory that grants

interests to the deceased based on factors other than the interests

of the living individuals they used to be. However, no theory

holds that a deceased’s posthumous interests are identical to the

interests the living person held while alive. For example, no one

contests that experiential interests, such as the interest in

53. See discussion supra Part II.B.

54. Kramer, supra note 13, at 32, 35.

55. Id. at 47.

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avoiding pain, are extinguished by death.

Although theories of posthumous interests have in common

the fact that posthumous interests are a subset of the former

living person’s interests, the scope of posthumous interests

varies. Consider, for example, whether a particular interest of a

living person needs to be communicated to others in order for it

to survive as a posthumous interest. On the ante-mortem person

approach advocated by Pitcher and Feinberg, there is no reason

to think an interest must be communicated to survive. Since the

subject of posthumous interests is the ante-mortem person, the

relevant interests are those of the ante-mortem person. There is

no need to tie the subject of posthumous interests to people’s

recollection of that person. Thus, there is no reason to think that

one’s interests had to have been communicated before death in

order for the relevant posthumous interests to exist any more

than an incompetent patient’s desires before incompetence have

to be expressed in order for the patient to retain an interest in

treatment that reflects those wishes. Rather, as long as the

interest is still capable of being fulfilled or thwarted, it persists.

56

Kirsten Smolensky, on the other hand, who takes Kramer’s

approach to posthumous interests, limits posthumous interests

to those that the deceased expressed to others before her death.

57

According to Smolensky, whether an interest survives death

depends on whether there is a record of the desire underlying

the interest.

58

As a result, a secret desire reflects an interest that

dies with the person who held it.

Smolensky’s requirement that the living know about an

interest of the deceased for it to survive follows from Kramer’s

view that the dead continue to be rights-bearers only to the

extent that they live on in the memories of the living.

59

If this is

so, then an individual’s desires unknown to others cannot

survive death to become posthumous interests. It would also

56. Feinberg Harm, supra note 21, at 64.

57. Smolensky, supra note 14, at 772.

58. Id.

59. Id. at 790 (citing Kramer, supra note 13, at 47).

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follow that those who had no friends, family, possessions,

acquaintances, or celebrity would have no posthumous interests

and that those who were more guarded and private may have

fewer posthumous interests than those who were less so.

Whether posthumous interests exist only in relation to

expressed desires will have implications for whether the dead

can have an interest in certain treatment of their corpse in the

absence of expressed wishes. For example, as will become more

apparent below, the issue has implications for whether, under

existing law, we should presume consent to organ donation

where the wishes of the living person are unknown.

Having examined the problem of experience and the

problem of the subject, there is no agreement as to whether the

dead can have interests or be rights-holders. Even if we accept

that the dead can have rights, the scope of those rights is the

subject of debate. My own view is that harm is subjective and in

any event one must have the capacity to be affected (not just

altered) in order to be the proper subject of rights. In my view,

an important feature of death is that it precludes any further

harm or benefit to the deceased. However, my aim is not to

convince the reader of the correctness of my view: the debate on

whether the dead can have interests that ground rights has been

discussed for decades in the literature and I make no new

arguments to add in defense of my view that they cannot. What

is important for present purposes is to recognize that there are

multiple approaches to whether, and how, the dead can be

conceived of as rights-bearers.

III.

M

ORAL IMPLICATIONS OF WHETHER AN INTEREST IN

POSTHUMOUS BODILY INTEGRITY BELONGS TO THE DEAD

OR

ONLY TO THE LIVING

This Part examines the moral implications of viewing a right to

posthumous bodily integrity as belonging either only to living

individuals in relation to their own bodies or also to the dead.

Specifically, it considers the implication in three scenarios in

which a claim to posthumous bodily integrity could arise: a)

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where an individual’s wishes regarding her corpse were

expressed before her death; b) where her wishes were not

expressed but can be inferred; and c) where her wishes are

neither expressed nor inferable. For the moment the analysis

assumes a generic right to posthumous bodily integrity,

although this should be viewed as a placeholder for the sum of

legally-granted rights to make specific decisions about the

treatment of one’s dead body. These specific interests will be

examined in the next Part. The analysis reveals that the moral

basis for a right to bodily integrity varies considerably

depending on whether the underlying interests are construed as

surviving death or not. And in some cases, the different

approaches suggest different morally-acceptable conduct in

relation to dead bodies.

A.

P

RIOR WISHES EXPLICITLY EXPRESSED

Assume an individual, Sara, made it known that she wished

to be cremated and not to be an organ donor. Assume also that

these were her sincere wishes and that Sara is a competent adult.

Regardless of whether Sara’s critical interests in not being an

organ donor and in being cremated survive her death, the moral

thing to do appears to be to respect those wishes, but the reasons

for this differ considerably depending on whose interests are at

stake. If these interests of Sara’s survive death, then to fail to

abide by them is to harm the deceased Sara’s critical interests.

To be more precise, those critical interests survive on both a

Feinberg and Kramer-style approach to posthumous interests.

On Feinberg’s account, interests need not be known to others in

order to survive.

60

On Kramer’s account, they do need to be

known to others,

61

but this section assumes that Sara’s wishes

have, in fact, been explicitly communicated.

If, however, Sara’s interests cease to exist when she dies,

any morality-based reasons for respecting Sara’s wishes depend

60. See discussion supra Parts II.B. & D.

61. See id.

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on the existence of promises or the knowledge of others that her

wishes were not respected.

If Sara’s wishes were expressed in a legally binding manner,

the state has given Sara reason to believe that her wishes will be

respected. This amounts to a kind of promise by the state,

although equating laws with state promises is perhaps too

simplistic. The idea of state promises is also subject to the caveat

that some laws grant only negative rights. For example, there is

no positive right to be an organ donor – the state never promises

that one’s consent will result in donation – but there is a right

not to be an organ donor.

If Sara’s wishes were not expressed in a legally binding

manner but were nevertheless explicit, the surviving family may

have explicitly or implicitly promised Sara that they would

ensure her wishes would be carried out. If so, and her wishes

are ultimately not respected, this amounts to a broken promise

by the family. From the perspective of broken promises, it may

be immoral to ignore Sara’s wishes if a promise was made to

respect them. This is true regardless of whether Sara’s interests

survive death. Assuming that breaking promises is wrong even

if it does not harm the person to whom the promise was made,

62

it is not necessary for Sara to still have interests in order for a

broken promise to her to be immoral.

There is another perspective from which it may be immoral

to ignore Sara’s express wishes, but it only applies in relation to

the interests of living individuals in the treatment of their own

corpses. Since a living person can have critical interests in the

treatment of her corpse, those interests can only be fulfilled

during life if the person believes her wishes will be respected.

63

62. See generally Mason, supra note 38 (discussing four philosophical views on

the implications and act of promising).

63. The issue is somewhat more complicated in that it depends whether one

takes a subjective or objective approach to interests. On Feinberg’s view, whether

one thinks one’s interest is fulfilled or thwarted is irrelevant to whether that interest

is actually fulfilled. To avoid this problem, it is sufficient to recognize that the

living have not only an interest in the treatment of their corpse, but an interest in

believing their corpse will be treated in a certain way. People can, certainly, suffer

from the belief that their posthumous wishes will not be respected, even if they

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Thus, by systematically ignoring people’s wishes regarding their

corpses, the living will have no comfort that their own wishes

will be respected.

There is, therefore, an interesting distinction between the

living and the dead as interest-holders in this respect. Not

following Sara’s prior wishes regarding a critical posthumous

interest harms the dead Sara if, indeed, the dead Sara can have

interests. However, if the dead Sara has no interests, not

following her wishes does not harm her. The failure to abide by

her wishes can only constitute harm insofar as it amounts to a

broken promise or causes other living people to doubt that their

own wishes will be respected. One implication of this is that if

no one knows Sara’s wishes were not respected, and her

interests terminate at death, it may be morally unproblematic

not to respect her express wishes unless a promise to her was

broken. Thus, if Sara mentioned to her children that she did not

want to be an organ donor, but she never expressed those

wishes in a legally binding manner, her children did not

explicitly or implicitly promise their mother they would carry

out her wishes, and no one else knows what Sara wanted, there

may be no moral obligation to fulfill Sara’s wishes.

That said, there might be a broader dignitary interest in

carrying out the wishes of the dead. That is, there may be

dignitary harm to society as a whole in not respecting the prior

wishes of the dead even if the fact of not respecting those wishes

is never made public and no promises were made. This relates

to the possibility mentioned in the introduction that society has

an interest in seeing itself in a certain light – as people who

respect the wishes of the dead. Thus, it may be morally wrong

not to respect the express wishes of the dead, regardless of

promises and the public’s knowledge, if society is harmed by

acts of refusing to honor the wishes of the dead. However, the

reasons why society would be harmed by such acts depend on

why society thinks it important to respect the wishes of the dead

ultimately are.

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in the first place. These reasons could include wanting to give

confidence to the living that their wishes will be respected (in

which case the refusal would have to be public knowledge to

affect the interest), believing that the dead have ongoing

interests (in which case the refusal would not have to be public

knowledge to affect the interest), wanting to show respect for

the person that was, or for any number of other reasons.

However, since this article is primarily concerned with the

interests of living and dead individuals in relation to their own

bodies rather than societal interests in the treatment of corpses, it

does not pursue further the nature of society’s interests in the

treatment of the dead.

B.

P

RIOR WISHES NOT EXPLICITLY EXPRESSED BUT PERHAPS

INFERABLE

This section considers the implications of the identity of the

rights-holder for situations in which the deceased did not

explicitly make her wishes known, but where there are

surviving friends and family who knew the deceased, or there

are known facts about the deceased that could lead to inferences

about what her wishes would have been.

Imagine that Sara left no explicit instructions but has

surviving friends and family, or she has known affiliations, such

as a religious affiliation, from which wishes regarding the

treatment of her corpse could be inferred. There are several

logical possibilities for how to proceed. For example, we could

attempt to infer what Sara would have wanted based on the

values and beliefs we attribute to her, we could simply leave the

decision to Sara’s family, the state could make whatever

reasonable and dignified use of Sara’s body it wished, or the

state could mandate as little interference as possible with the

body.

If the dead Sara continues to have an interest in

posthumous bodily integrity, there are two possible ways to

fulfill that interest. The first is to try to infer what Sara would

have wanted based on her personality, beliefs, and values. In

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other words, surviving loved ones could enter into a process of

substitute decision-making not unlike that found in the medical

context in relation to incompetent patients.

64

The second way to fulfill Sara’s posthumous bodily

integrity is to interfere as little as possible with Sara’s corpse.

Surviving friends and family may not be in the best position to

make a substitute decision, either because they may not have a

good sense of what Sara would have wanted, or because they

may be in a conflict of interest with the deceased if Sara and her

family wanted different things for Sara’s body. In the medical

context the default is non-interference without consent because

non-consensual interferences with the bodily integrity of the

living are considered to be potentially significant violations of

individual autonomy.

65

Thus, in the absence of known wishes,

the preferable course of action may be to permit as few

interferences with a corpse as possible by, for example,

prohibiting organ donation and medical research or education.

Of course a body must be disposed of in some manner. If Sara’s

wishes cannot be inferred, either burial or cremation, the two

most common and accepted means of disposal, would seem

appropriate.

That said, a right to posthumous bodily integrity exists for

different reasons than the right to bodily integrity while alive: it

can only protect critical interests, not experiential ones. As a

result, the balancing of the deceased’s interests against the

interests of others in the treatment of the deceased’s body need

not lead to the same outcome in relation to dead bodies as live

ones. If the interest in posthumous bodily integrity is seen as

less compelling than the interests in bodily integrity of the living

64. See generally Thomas G. Gutheil & Paul S. Applebaum, Substituted

Judgment: Best Interests in Disguise, 13 H

ASTINGS CTR.REP. 8 (1983), for a discussion

and history of the various tests used in substituted decision-making for

incompetents.

65. In fact, informed consent must accompany, practically, every procedure.

Informed Consent, A

M.MED.ASS’N, http://www.ama-assn.org/ama/pub/physician-

resources/legal-topics/patient-physician-relationship-topics/informed-consent.page

(last visited May 23, 2013). This is because the medical and legal fields view

unwanted touching as battery. See discussion supra Part I.C.

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(perhaps because of the lack of experiential interests), an

argument could be made for setting different defaults for the

dead than for the living. For example, all dignified interferences

with a corpse could be allowed unless one opts out. That might

encourage people to make an active decision about organ

donation, for example. Alternately, the default could reflect

what a majority of people would choose to do if they addressed

the issue.

66

In the organ donation context, at least, it is well

established that most people would consent to being donors,

even though most people do not legally register any

preference.

67

This fact, combined with the benefit to recipients of

an opt-out default, could be argued to justify an opt-out

approach to organ donation. The point is that a default of non-

interference in the absence of consent, while appropriate in

relation to living bodies, is less obviously appropriate in relation

to dead bodies even if the dead have ongoing interests.

The above analysis is oversimplified in that it assumes a

Feinberg/Pitcher rather than a Kramer approach to the interests

of the dead. On Feinberg and Pitcher’s theories, an individual’s

interests would seem to survive death regardless of whether the

content of those interests was known to others.

68

According to

Kramer, however, only Sara’s desires that are reflected in what

others knew about Sara survive death. Based on the latter

approach, it is unclear whether friends and family should

undertake to infer what Sara would have wanted because it is

not clear whether the dead Sara retains an interest in desires that

might be inferable but were never expressed. To the extent the

interests of the dead relate to the way the dead live on in the

memories of the living, those interests can perhaps be met so

long as surviving family and friends think they are doing what

66. See Glenn Cohen, The Right Not to be a Genetic Parent?, 81 S. CAL.L.REV.

1115, 1187–96 (2008), for a discussion of why certain kinds of defaults may be

performed.

67. Survey Shows Many Want to Donate Organs, But Few Do, U.S.

N

EWS HEALTH

DAY (Apr. 16, 2009), http://health.usnews.com/health-news/managing-your-

healthcare/articles/2009/04/16/survey-shows-many-want-to-donate-organs-but-few-

do.

68. See discussion supra Part II.

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the individual would have wanted. For example, Sara’s interests

would be met under Kramer’s approach, but not under

Feinberg’s, by burying her with her husband if she had a secret

true love with whom she would rather have been buried.

Whether or not, and to what extent, family members should try

to infer the deceased’s prior wishes should then, perhaps,

depend on the degree to which the family members have

confidence in their ability to infer those wishes.

If, on the other hand, Sara no longer has an interest in

bodily integrity and the interests and rights at stake are only

those of other living individuals in the future treatment of their

own cadavers, the actions one should take in relation to

unexpressed wishes are sometimes different. It may be

appropriate for friends and family to try to infer the deceased’s

prior wishes. The reason for this, however, is to give confidence

to living individuals that their own families will make decisions

that reflect those individuals’ beliefs and values.

It is less obvious in the context of unexpressed wishes,

however, that we should seek to infer Sara’s prior wishes in

order to give confidence to the living that their own wishes will

be respected. People will not necessarily have confidence that

unexpressed wishes will be inferred and respected. In addition,

those who do not express particular wishes regarding the

treatment of their dead bodies may not have critical interests in

the treatment of their corpse one way or another. Yet, one

should be careful not to assume a person had no critical interests

regarding the treatment of her corpse just because no wishes

were expressed. One’s posthumous interests are deeply

personal, and conversations about the treatment and disposal of

dead bodies are often considered upsetting, morbid, or taboo.

There are, therefore, many reasons why such matters may not

explicitly be discussed before death.

If Sara expressed no wishes because she had no critical

interests, then there is no need to try to infer what she would

have wanted if her interests terminated on her death. However,

even if Sara did have unexpressed critical interests, she is now

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dead and has no interests. The goal of assuring the living that

their wishes will be respected is not jeopardized because we

have not ignored Sara’s wishes – we simply do not know what

they were. The implication of this is that if interests belong only

to the living, it does not matter – from the perspective of an

interest in posthumous bodily integrity – what is done to the

corpse (within reason, as discussed below). The family’s own

wishes could prevail, or the law could mandate doing nothing or

donating organs without the individual’s prior consent. None of

these actions could violate the interests of the interest-holder,

because she no longer exists. Nor are these actions harmful to

the critical interests of the living in the treatment of their own

corpses if no promises were broken and people’s belief that their

own wishes will be respected is not obviously threatened.

Nothing in the foregoing precludes next of kin from trying

to guess what the person would have wanted and making their

decision on that basis. But if only the living have interests, that

decision only respects the next of kin’s own interests in the

treatment of a loved one’s body and not those of the deceased or

of a living person in relation to her own future corpse.

C.

P

RIOR WISHES UNKNOWN

Now imagine that Sara has died without expressing her

wishes regarding the treatment of her corpse and she has no

surviving friends or family to make a substitute decision based

on her inferred wishes. Further, she had no known affiliations

from which her wishes could be inferred. In this case, respecting

the interests of the dead in posthumous bodily integrity may

require doing as little as possible to Sara’s corpse. She will be

harmed by interferences with her corpse that she would not

have agreed to; and so, like in the medical context, the default

should be not to touch her body any more than necessary

without consent.

69

Again, however, the distinction between

69. Although, see discussion supra Part II, for a discussion of balancing those

interests in setting defaults.

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Feinberg and Kramer’s approaches complicates matters

somewhat. Under Kramer’s view, a deceased person with no

surviving friends or family generally has no posthumous

interests.

70

Therefore the conclusion that we should interfere as

little as possible with Sara’s corpse applies only to a

Feinberg/Pitcher approach to posthumous interests.

If, however, Sara’s interests in the treatment of her corpse

terminate on her death, it should be permissible to do almost

anything with her body without violating an interest in

posthumous bodily integrity. This does not mean that others’

interests cannot be affected: undignified treatment of a corpse,

for example, may harm the interests of surviving friends and

family as well as society at large, which has an interest in the

dignified treatment of human remains. The point is that the

interests of a living individual in her own posthumous bodily

integrity cannot be affected by what is done to her own corpse.

If the dead have no interests and the right to posthumous bodily

integrity therefore belongs only to living individuals, the

individual whose corpse is at issue has no interests or rights to

be violated after her death. The interests of other living people

in their own posthumous bodily integrity are also arguably not

threatened by, for example, taking the organs of those whose

prior wishes are unknowable, because the living can avoid this

fate by expressing their wishes to others, especially in a legally

binding format.

The ability to do almost anything to the corpse of someone

whose wishes are unknown, without affecting an interest in

posthumous bodily integrity, is perhaps the most significant

difference between viewing an interest in posthumous bodily

integrity as belonging only to living individuals versus

persisting after death.

Note the qualification above – one may do almost anything

without affecting a posthumous interest in bodily integrity. This

limitation relates to unusual, and therefore unpredictable,

70. See discussion supra Part II.

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treatment of a corpse, exemplified here by cryonic preservation

and plastination for the purposes of public display.

If only living people have an interest in their own

posthumous bodily integrity, it may, nevertheless, be

inappropriate to permit unusual interferences with a corpse in

the absence of expressed or inferable wishes. There are two

reasons for this. First, because these practices are very unusual,

most people would not think to express an opinion about them.

Second, and relatedly, these practices are unusual in part

because most people do not want their bodies treated in this

way: they do not want to be cryonically frozen or put on display.

Whereas the first reason suggests that people have formed

opinions that they simply do not express, the second is

consistent with the possibility that an individual never formed

an opinion, while alive, about a particular treatment of his or her

corpse. This would fall under the category of wishes not

expressed and not inferable, but there may be a moral

distinction between acting in a manner the deceased might have

actually opposed while alive, although we have no way of

knowing of that opposition now, and acting in a manner the

deceased never contemplated. In other words, it may be worse

to cryonically freeze someone who, while alive, thought the idea

repulsive but left no clue of that view to others after her death,

than to do the same to someone who never turned her mind to

the possibility while alive.

My intuition is that the former is only worse than the latter

if one thinks that the dead have a right to posthumous bodily

integrity on a Feinberg-type basis. If all interests end with

death, or if the dead have interests only to the extent they are

remembered by the living, then there is no greater harm to the

dead in going against a person’s existing but unexpressed and

unknown wishes than there is in doing something that the

deceased had no opinion on in life but might have opposed had

she considered the options. Only if the dead have ongoing

interests that are not dependent on what the living know about

them is the possibility of a moral difference plausible. Then I

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believe a reasonable argument could be made that it is morally

worse to violate interests held but not communicated than to act

in a manner that might have been contrary to the person’s

wishes had she contemplated the issue.

The point of limiting unusual or unpopular uses of corpses

to situations in which there is actual prior consent is that if we

imposed such uses in the absence of expressed wishes living

people might not have their critical interests in the treatment of

their bodies satisfied. They might worry that anything not

expressly mentioned before death would be fair game and

might, therefore, worry about the fate of their remains.

It is highly unlikely that families or the state would want to

donate people’s corpses for such procedures without knowing it

was what the deceased wanted. But the point is that if an

interest in posthumous bodily integrity belonged only to the

living we could act morally – at least in relation to the interests

of living people in their own bodies

71

– by either burying or

cremating the bodies of those who expressed no view before

death and whose wishes were not inferable, but not by

displaying those people’s corpses in Body Worlds. This is

because burial and cremation are both sufficiently well known

and acceptable to most of the population – there is no harm done

to the critical interests of the living by making, say, cremation,

the default for those who expressed no views while alive.

Neither of these things is true of less frequent interferences such

as plastination and cryonic preservation: they are both little

known and much less popular. Organ donation presumably

falls somewhere in between, in that most people express a

willingness to donate but there are significant numbers of

people who do not want to be donors, and donation is still

relatively rare.

71. It is still arguable that there is harm to society at large, based on human

dignity, if we allow organ donation by those who didn’t affirmatively express a

wish to be donors. Alternately, of course, is the argument that potential organ

recipients have interests that should trump any individual’s interest in deciding

what will become of her cadaver. Recall, however, that the focus of this article is

the right to posthumous bodily integrity in relation to one’s own body.

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IV.

AL

EGAL RIGHT TO POSTHUMOUS BODILY INTEGRITY

Part II demonstrated how the living and the dead can, at least in

theory, have interests in relation to posthumous events and how

these interests can ground legal rights in relation to what

happens after death. Part III demonstrated some of the moral

implications that flow from viewing an interest in posthumous

bodily integrity as belonging to the dead or only to living

individuals. With this foundation in place, Part IV considers

specific types of decisions that can be made about one’s corpse

and examines how existing laws reflect the analysis in Part III.

That is, it examines whether existing laws reflect a view that the

dead have an interest in posthumous bodily integrity or a view

that only the living do. It also considers how laws might be

changed to reflect one view or the other.

Recall why it is that (living or dead) individuals may have

interests in relation to their cadavers. Essentially, most people

care, to varying degrees, what happens to their bodies after they

die. Many have a strong preference for burial or cremation (and

spend considerable sums on solid wood caskets or decorative

urns); some want to be organ donors, while others wish to be

interred intact, and therefore wish to avoid not only organ

donation but autopsy, if possible. These wishes may reflect

critical interests in following the tenets of one’s religion, in being

altruistic, or in any number of views about the good life. And

so, we have enacted laws to protect these interests.

The laws discussed below grant rights to posthumous

bodily integrity in relation to individuals’ own corpses. These

laws in no way deny, and often affirm, that others will also have

an interest in the treatment of that corpse. For example,

surviving friends and family can be harmed by the careless

treatment of a loved one’s remains, or by having a loved one’s

organs removed for transplantation if that is disturbing to

surviving family members. In addition, society has an interest

in ensuring that human remains are treated with dignity. It

may, therefore, be evident that people should treat human

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corpses with respect, but it does not follow from that premise

that there should be a right to bodily integrity in relation to one’s

own dead body. A right to posthumous bodily integrity means

not only that certain interferences are not allowed, but that it’s

the entity whose body is at issue whose rights stand to be

violated. Thus, laws that respect a right to posthumous bodily

integrity must be distinguished from laws that protect corpses

from interference but do not treat the (living or dead) person

whose corpse is at stake as the rights-holder.

For example, many U.S. states criminalize certain acts in

relation to a corpse on the basis that they are undignified.

Necrophilia is commonly prohibited, either expressly or

implicitly.

72

It is a criminal act regardless of whether a person

consents in advance to having her dead body used in this way.

73

Other laws require dignified disposal of corpses in certain

prescribed locations that will avoid possible threats to public

health.

74

These reflect both society’s interest in the dignified

treatment of corpses and its interest in disposing of corpses in a

manner that protects the well-being of the living. Of course

necrophilia and undignified disposal could also harm the loved

ones of the deceased. The point is not that necrophilia only

harms the general public but rather that it is harmful regardless

of whether it can be said to be harmful to the deceased. The

prohibition on necrophilia and the requirement of a dignified

disposal are therefore not primarily concerned with posthumous

bodily integrity.

The right to posthumous bodily integrity is reflected in laws

that require an individual’s consent for most expected (and

some unexpected) interferences with a corpse. The consent

72. See, e.g., 2012 NEV.STAT. 201.450 (“A person who commits a sexual

penetration on the dead body of a human being is guilty of a category A felony . . .

.”).

73. It may seem unlikely that someone would provide advance consent to

necrophilia, but there are many people who consider their corpses to be no more

than tissue and would conceivably consent to necrophilia. Regardless, the point is

that such consent would be legally irrelevant.

74. See, e.g., M

ASS.GEN.LAWS ch. 144, § 35 (2012) (prohibiting burial near a

water supply).

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required is preferably the advanced consent of the person whose

deceased body is at issue. The substitute consent of the next of

kin or executor may suffice, but only in the absence of the

advance consent of the deceased. In other words, these laws

grant individuals a legal right to make binding decisions about

the treatment of their bodies after death. In particular, laws

governing organ donation, medical education and research on

cadavers, choosing burial or cremation, and posthumous

reproduction reflect an interest in posthumous bodily integrity.

A.

O

RGAN DONATION

The discussion of organ donation first demonstrates that

organ donation laws grant a right to posthumous bodily

integrity and then considers whether that right belongs only to

the living, or also to the dead. Put another way, it examines the

implications for organ donation policy of whether the right not

to be an organ donor survives death.

All U.S. states have adopted some version of the Uniform

Anatomical Gift Act, the majority of which have adopted the

2006 version (hereinafter referred to as the UAGA).

75

The

UAGA grants competent adults the legal right to decide whether

or not to be posthumous organ donors.

76

The default under the

UAGA is that no organ donation will occur.

77

Consent is

required to displace that default.

78

In other words, the UAGA

reflects an opt-in approach to organ donation, which is the case

in all common law countries but not in many civil law countries,

where the default is to allow donation unless a donor or her next

of kin has expressed a wish not to be an organ donor.

Section 4 of the UAGA states: “an anatomical gift of a

donor’s body or part may be made during the life of the donor

75. Acts: Anatomical Gift Act (2006), UNIF.L.COMM’N,

http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006)

(last visited May 17, 2013).

76. U.A.G.A.

§4(2008).

77. U.A.G.A.

§§ 4–5 (2008).

78. U.A.G.A.

§5(2008).

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for the purpose of transplantation, therapy, research, or

education . . . .”

79

Consent to donating one’s organs may be

given in a will, in a signed organ donor card, or orally.

80

An

individual may choose to donate all or only certain parts of her

body, at her discretion.

81

She may also withdraw consent at any

time before death.

82

The UAGA provides not only for consent but also for

legally binding refusals to consent.

83

Although refusal is

presumed, where the deceased did not consent or refuse in a

legally recognized manner, family members, in a hierarchy set

out by the UAGA, may decide whether to donate their relative’s

organs.

84

Refusing to donate, as opposed to not deciding

whether to donate, means that the family has no legal authority

to consent to donation on the deceased’s behalf.

85

Notwithstanding that the UAGA clearly grants priority in

decision-making to the individual potential donor, there is a

well-documented practice of medical staff adhering to the

wishes of surviving family members to refuse donation even if

the deceased previously consented. In practice, even where an

individual has given her legally binding consent to being an

organ donor, organs will not be retrieved in the face of

opposition by the family. This is known as the family veto.

86

In response to the family veto, the 2006 version of the

UAGA makes explicit that the law grants the decision to donate

first to the individual potential donor and not the surviving

79. U.A.G.A. § 4 (2008).

80.

U.A.G.A. §§ 5, 10 (2008).

81. U.A.G.A.

§4(2008).

82.

U.A.G.A. § 6 (2008).

83. U.A.G.A.

§7(2008).

84. U.A.G.A.

§9(2008).

85. U.A.G.A.

§7(d)(2008).

86. For description and discussion of the family veto, see Jennifer L. Mesich-

Brant & Lawrence J. Grossback, Assisting Altruism: Evaluating Legally Binding

Consent in Organ Donation Policy,30 J. H

EALTH POL., POL’Y &L. 687 (2005);

Wilkinson, supra note 35, at 87–88; T. M. Wilkinson, Individual and Family Decisions

About Organ Donation, 24 J.

A

PPLIED PHIL. 26 (2007); and Paula Boddington, Organ

Donation After Death – Should I Decide, or Should My Family?,15 J. A

PPLIED PHIL. 69

(1998).

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family: “[I]n the absence of an express, contrary indication by

the donor, a person other than the donor is barred from making,

amending, or revoking an anatomical gift of a donor’s body or

part if the donor made an anatomical gift of the donor’s body or

part . . . .”

87

The family may only consent to donation of the

deceased’s body or refuse to consent if the deceased did not

legally consent or refuse consent while alive. There is no

positive right to be a donor, in that there may be no usable

organs or viable recipient, but there is effectively a right not to

have your wishes overridden by your next of kin.

The provisions of the UAGA, therefore, largely mirror the

law with regard to consent to medical treatment.

88

The

“patient,” if competent, has the right to consent; and, in the

absence of consent, donation is legally impermissible.

Alternatively, if the “patient” did not make her wishes known

before becoming incompetent, a family member may provide

substitute consent.

One potential difference between the law of substitute

consent to medical decisions and the family’s authority to

consent under the UAGA relates to the basis on which the

substitute decision must be made. In relation to incompetent

patients, substitute decisions regarding medical treatment

should, generally, be based on what the patients would have

wanted for themselves or, alternately, in the patients’ best

interests.

89

Incompetence does not change the fact that the

patient’s interests are given priority. The UAGA, on the other

hand, does not require the family to base its decision on what

87. U.A.G.A. § 8 (2008).

88. See discussion supra Part III.

89. Many states have statutorily adopted a substitute decision standard – at

least for certain types of treatment decisions. In Illinois, for example, the Health

Care Surrogate Act states that treatment decisions for an incompetent patient

should “conform[] as closely as possible to what the patient would have done or

intended under the circumstances.” Health Care Surrogate Act, 755 I

LL.COMP.

STAT. 40/20 (2007). For a discussion of the substitute judgment standard and how

courts have adopted it, see R

OBERT S. OLICK, TAKING ADVANCE DIRECTIVES

SERIOUSLY:PROSPECTIVE AUTONOMY AND DECISIONS NEAR THE END OF LIFE 5–9

(2001).

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they think the deceased would have wanted.

90

However, the

decision is not left entirely to their discretion. Some states’ laws

indicate that if it is known that the deceased would have

opposed donation, the next of kin may not consent to it, even if

the deceased’s opposition was not expressed in a legally binding

manner.

91

Another difference between the medical context and the

organ donation context relates to the existence of the family

veto, which suggests that the right to posthumous bodily

integrity regarding organ donation may, de facto, be weaker than

it appears on the face of the law. There is no analogy to the

family veto regarding incompetent patients: I am aware of no

significant practice of rejecting patients’ legally valid and clear

advance directives in the face of opposition by family

members.

92

Organ donation law, therefore, provides an example of a

legal right to posthumous bodily integrity. It makes the default

that no donation can occur without consent, and prioritizes the

individual’s consent over that of the family. This need not be so:

90. U.A.G.A. § 8 (2008).

91. See, e.g., N.Y.

P

UB.HEALTH LAW § 4301 (McKinney 2007).

(Any of the following persons, in the order of priority stated, may . . . in

the absence of actual notice of contrary indications by the decedent . . . or

reason to believe that an anatomical gift is contrary to the decedent's

religious or moral beliefs, give all or any part of the decedent's body for

any purpose specified . . . .).

See also Illinois Anatomical Gift Act, 755 I

LL.COMP.STAT.ANN. 50/5-5(b) (2007) (“If

no gift has been executed under subsection (a), any of the following persons . . . and

in the absence of (i) actual notice of contrary intentions by the decedent . . . may consent

. . . .”); and Illinois Anatomical Gift Act, 755 I

LL.COMP.STAT.ANN. 50/5-20(c) (2007)

(If (1) the hospital . . . has actual notice of opposition to the gift by the

decedent . . . or (2) there is reason to believe that an anatomical gift is

contrary to the decedent's religious beliefs . . . then the gift of all or any

part of the decedent's body shall not be requested.).

92. Advance directives, and other instructions that precede incapacity, can be

problematic and the law does not always require them to be followed. One

particular difficulty is that it is difficult for people to anticipate circumstances in

enough detail that physicians have confidence that they know what the individual

would have wanted in the situation that actually materializes. However, where the

patient’s previously expressed wishes are sufficiently clear and applicable to her

present situation, the family has no right to substitute its own wishes for her

treatment. See, e.g., W

IS.STAT. §§ 154.01–.3 (2012) (granting priority to advance

directives).

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the state could conscript organs, it could leave the decision to

the family, or it could, at least, presume consent so as to increase

the supply of organs available for donation. The law prioritizes

individuals’ interest in posthumous bodily integrity over the

interests of the sick and dying in receiving needed organs and, at

least in theory, prioritizes individuals’ interest in posthumous

bodily integrity over the interests of loved ones in deciding

whether they want to donate the deceased’s organs. The family

veto suggests, however, that in practice there is some

disagreement, at least among certain medical practitioners, with

the way the law has prioritized the interests of individual

potential donors over those of their loved ones.

Consider now whose right to posthumous bodily integrity

the UAGA seeks to protect. Given the discussion in Part III,

there are good reasons for respecting individuals’ express

consent or refusal to consent to being an organ donor, regardless

of whether an interest in posthumous bodily integrity survives

death. This is because respecting express wishes would protect

the interests of the dead, if they have any, and would respect the

critical interests of living people in their posthumous bodily

integrity by giving them confidence that their own wishes will

be respected in the future. Thus, the UAGA’s requirement that

the deceased’s express wishes be respected is consistent with

either the dead having or not having a continued right to

posthumous bodily integrity.

Where an individual’s wishes regarding organ donation

were not made explicit (legally or otherwise) but are inferable,

the law leaves the decision to the family, subject to the caveat

that some states preclude the family consenting if it is known

that the individual would have objected to being an organ

donor. Again, the law is consistent with the relevant right to

posthumous bodily integrity belonging either only to the living

individual or persisting after death, but for different reasons. If

the deceased is thought to have an ongoing right to posthumous

bodily integrity, Part III.B suggests that the best way to fulfill the

deceased’s ongoing interests is for the law to mirror that of

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substitute consent to medical treatment: a substitute decision-

maker should make the decision that best reflects what the

deceased would have wanted for herself. This is essentially

what the UAGA accomplishes.

However, if any interest in posthumous bodily integrity

ends with death, the law might reasonably still allow for

substitute decision-making where the deceased’s prior wishes

are inferable. The purpose, however, would not be to respect

the rights of the dead, but rather to give confidence to the living

that their own inferable wishes will be respected.

In the situation where the deceased’s prior wishes are

unknowable, however, it does make a difference whether the

relevant right to posthumous bodily integrity survives death or

not and if so, on what basis. If the deceased has an ongoing

right to posthumous bodily integrity generally, she will either be

harmed by having organs removed contrary to her prior

unexpressed wishes (on a Feinberg-style approach) or else her

unexpressed wishes cannot form the basis of a posthumous

interest (on a Kramer-style approach). If the deceased can have

no rights, then the result is the same as on a Kramer-style

approach: an unexpressed wish cannot form the basis of a

posthumous right.

Anatomical gift law presumes a refusal to consent in the

absence of known wishes. This could reflect a view that the

dead have a right to posthumous bodily integrity on a Feinberg

model, in that we should err on the side of presuming non-

consent to avoid potential harm to the dead. Alternately, it

could reflect a view that the right of the living to decide whether

to be organ donors justifies precluding donation without their

express consent. That is, even where people’s prior wishes are

unknowable, it could give comfort to the living to know that

they will never be made organ donors unless they, or their next

of kin, affirmatively authorize it.

The law is, therefore, consistent with both approaches to the

right to posthumous bodily integrity, but the implications of one

are much more radical than the other. Organ donation law

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requires balancing the interests of multiple stakeholders in the

use of dead bodies. As seen above, it prioritizes the interests of

the potential organ donor over those of potential organ

recipients, the families of both, and the interests of society

generally. But if any right to posthumous bodily integrity ends

at death, the interest protected is much weaker than that if the

right survives death. If the right ends at death, it would mean

that our laws protect people’s right not to have to make a

decision about organ donation, and still not have to worry about

being donors, over the competing rights of potential recipients,

among others. It is one thing to submit a rights-holder (namely

the dead person) to unwanted bodily interference. But if the

dead have no rights, the only interest in posthumous bodily

integrity at stake is that of the living in believing their wishes

will be carried out. They can never actually be subject to bodily

interference contrary to their rights, because once dead they no

longer have a right to posthumous bodily integrity. Any

violation that would result from allowing the removal of organs

from those whose wishes were unknown would be a violation in

the form of disturbing the peace of mind that comes from

believing one’s critical interests will be fulfilled. However, that

violation can be avoided if the individual makes a legally

binding decision about organ donation. Some states also protect

against unwanted donation where a person’s wish not to donate

is known but wasn’t legally recorded.

93

Thus, if the dead have no ongoing rights, then to preclude

donation in the absence of any known wishes is to rate a living

person’s critical interests in her dead body very highly. This

gives greater weight to people’s right not to make a decision and

still not be an organ donor, than to the competing interests of

potential organ recipients, for whom the matter may be one of

life or death. It is, therefore, harder to justify an opt-in default

for people whose wishes are unknowable if the dead have no

ongoing interest in posthumous bodily integrity than if they do.

93. See supra text accompanying note 91.

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This is not to say that existing anatomical gift law cannot be

justified if the dead have no rights. But it is easier to justify – at

least where the deceased’s prior wishes are unknowable – if the

dead also have a right to posthumous bodily integrity.

The policy debate over opting in or out of organ donation

never explicitly addresses who holds the rights. The distinction

between the living or dead as bearers of a right to posthumous

bodily integrity, although somewhat philosophical, might be

useful in policy debates. For example, those who do not view

the dead as rights-bearers and who support an opt-out model of

organ donation, like Spain’s,

94

could rely on arguments in the

previous paragraphs. That said, these arguments support an

opt-out model most strongly in relation only to those whose

wishes are unknowable, not to those whose wishes were

express. For those whose wishes can be inferred, there are good

reasons, even if the dead have no rights, to respect them. This

might therefore best be reflected in a European-style policy

where the default is consent but in practice, any family objection

is sufficient to preclude donation.

95

For those who consider the

dead to have ongoing rights to bodily integrity, especially on a

Feinberg model, the argument in favor of current consent

defaults in organ donation law is easier to make.

Given the foregoing, I suggest an intermediate proposal for

amendments to organ donation law that should be palatable if

the dead are thought to have no right to posthumous bodily

integrity. The law could allow organ donation where there is

neither a registered refusal to consent, nor any means of

inferring the individual’s wishes. As a practical matter, this

would mean where there is no accessible next of kin who objects

to donation. Any such amendments are only appropriate where

the law permits the registration of a refusal, which is the case

under the 2006 UAGA, but not in Ontario, Canada, for example,

94. See generally David Rodriguez-Arias et al., Success Factors and Ethical

Challenges of the Spanish Model of Organ Donation, 376 L

ANCET 1109 (2010)

(discussing the opt-out method).

95. Id. at 1110.

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where it is only possible to register consent, not refusal.

96

Without being able to register a refusal, it would be impossible

for those without friends and family to avoid unwanted use of

their remains.

It could be argued that a distinction in legally permissible

treatment based on whether wishes are inferable would make

the law too complicated. However, if one were of the view that

the dead have no rights, and was convinced of the moral

differences between those without explicit or inferable wishes

and those who left instructions or whose wishes can be inferred

as set out above, complexity would be a poor reason for

maintaining the status quo. After all, by not requiring consent

from a subset of the population, the number of available donor

organs would increase, thereby saving lives.

More problematic is the fact that such a distinction would

suggest differential, and arguably worse, treatment of the bodies

of those who were most alone in life. If Sara had friends and

family to pass along her wishes, those wishes would be

respected; but, if she didn’t, her body would be subject to

treatment that may be contrary to the interests she held while

alive. Such a policy of differential treatment would be unlikely

to be acceptable to the public, but it is not clear why. It could be

that the public believes the dead have rights, and so differential

treatment of this kind would harm those dead whose wishes

were not inferable. Alternately, the public could view such

differential treatment as impermissible because it would be

unacceptable in relation to living bodies. This begs the question

whether the fact of death changes the moral issues at stake, but

the point is that such policy might be a non-starter.

Another potential objection to this proposal relates to the

96. The website of the agency responsible for organ and tissue donation in

Ontario has a “Frequently Asked Questions” section. In response to the question:

“Why are only ‘Yes’ responses to donation being collected?” it states: “Our goal is

to increase organ and tissue donation in Ontario. Our research shows jurisdictions

that have instituted a ‘Yes’ only registry have experienced an increase in donor

registrations.” Frequently Asked Questions, T

RILLIUM GIFT OF LIFE NETWORK,

http://www.giftoflife.on.ca/en/faq.htm (last visited Feb. 24, 2013).

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short timeframe in which organs may viably be procured for

donation. It may be that the next of kin cannot be contacted

immediately but is reached after, say, 48 hours. It is problematic

to imagine taking organs because the next of kin cannot be

found and there is no registered refusal, only to discover a day

later that the deceased, while alive, made her objections to organ

donation known. There are two responses to this problem, both

of which require a balancing of competing interests. First, one

could reject the proposed amendment altogether, so as to avoid

that unpleasant outcome (thereby giving greater weight to the

interests of living individuals in posthumous bodily integrity

than to the interests of potential organ recipients). Alternately,

one could acknowledge and accept that risk.

I am inclined toward the latter, although I acknowledge that

the public may not be ready for such a change to the status quo.

That said, various state legislatures have attempted to institute

laws that would presume consent to organ donation.

97

Since this

would have similar effects to my proposal regarding those with

no legally expressed wishes and no next of kin (that is, their

organs could be procured), my proposed amendment is perhaps

not unrealistic. In fact, my proposal has one advantage over

presumed consent in that it is more consistent with anatomical

gifts as an altruistic act. Rather than presuming that people want

to make the gift, it presumes they do not and requires an

affirmative act to change that default. However, the proposal

recognizes that once that person is dead, she no longer has any

interest in what happens to her body and allows a gift to occur

in the absence of known or inferable wishes.

In addition, laws already exist that allow the removal of

certain tissues from corpses without consent, so long as there is

no known objection. For example, some states allow removal of

pituitary glands or corneas so long as there is no known

97. Although no U.S. states have presumed consent legislation, several have

proposed bills that would have implemented some form of presumed consent. See,

e.g., S. 7721, 233rd Gen. Assemb., Reg. Sess. (N.Y. 2010); S. 3613, 96th Gen. Assemb.,

Reg. Sess. (Ill. 2010); S. 11-042, 68th Gen. Assemb., Reg. Sess. (Colo. 2011).

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opposition to removal.

98

In other words, there is an opt-out

rather than an opt-in approach to removing pituitary glands and

corneas in some states. Although pituitary glands and corneas

are different than hearts or kidneys, I see no reason why the

nature of the consent requirement should depend on the nature

of the organ. Or if it does, the consent requirement should

arguably be less strict regarding life-saving organs than

regarding the organs that improve but do not (directly) save

lives. Note, however, that although such laws exist, it is far from

clear that the public accepts removal of even pituitary glands

and corneas without consent.

99

To summarize, U.S. anatomical gift law requires consent for

organ donation, and preferably the prior consent of the

deceased. This is true regardless of whether the deceased’s

wishes are known or knowable. This is consistent with either

the dead or only the living having an interest in posthumous

bodily integrity; but, it is easier to reconcile, where the

deceased’s wishes are unknowable, with the former. If the

public and legislators are of the view that interests protected by

law can belong only to the living, they should consider

amending anatomical gift legislation so as to permit the use of

organs in the absence of the individual’s prior consent if that

individual’s wishes were not expressed and cannot now be

known.

B.

M

EDICAL RESEARCH AND EDUCATION

Another way in which the law protects an interest in

posthumous bodily integrity is through limitations on when and

how a corpse may be used for medical research or education.

Like organ donation, the issue of medical research and

98. See ARK.CODE ANN. § 12-12-320 (2009). See also COLO.REV.STAT. § 30-10-

621 (2012).

99. See Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002).

Sathyavaglswaran involved a lawsuit brought by parents who objected to the non-

consensual removal of their deceased child’s corneas. In addition, the trend seems

to lean toward states requiring consent for the removal of all tissue.

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education is governed by state legislation that, for the most part,

has adopted the UAGA.

100

Such statutes set out purposes for

which anatomical gifts may be made; and, in addition to organ

transplantation these include medical and dental research, and

medical or dental education.

101

The same consent requirements

apply as regarding cadaveric organ donation: the default is that

no research or educational use is permitted, consent is required

to displace this default, and the family’s wishes are only legally

relevant if the deceased did not express her consent or refusal in

a legally valid manner.

102

It is likely that, by analogy to the

family veto in the organ donation context, research and

educational facilities would be reluctant to take possession of a

corpse to which they were legally entitled in the face of

opposition by the surviving family. However, to the extent that

a right to posthumous bodily integrity is a negative right rather

than a positive right, this poses few problems. Certainly

hospitals and universities are not legally required to carry out

research on a corpse simply because the deceased’s prior consent

was obtained.

103

As with organ donation, there are societal benefits that flow

from medical education and research. One could therefore

imagine a legal regime in which bodies were made available for

such use without the deceased’s prior consent or without the

next of kin’s consent. However, as with organ donation, the law

gives greater weight to the interest in posthumous bodily

integrity than to the competing interests of families and society.

By analogy with the discussion of organ donation above,

laws governing medical research and educational uses of

corpses can be reconciled either with a view that the dead have

100. Acts: Anatomical Gift Act (2006), UNIF.L.COMM’N,

http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006)

(last visited May 17, 2013).

101. See, e.g., Illinois Anatomical Gift Act, 755 I

LL.COMP.STAT. 50/5-10 (2007).

102. U.A.G.A.

§§ 8–9 (2008).

103. Some states’ legislation explicitly provide that the donee may accept or

reject the gift. See, e.g.,Illinois Anatomical Gift Act, 755 I

LL.COMP.STAT. 50/5-45(a)

(2007).

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an ongoing interest in posthumous bodily integrity or that they

do not. This is especially true where the individual’s prior

wishes are known. But even if they are not known, the law still

favors individuals’ interest in posthumous bodily integrity over

the interests of those who benefit from medical education and

research. If only the living have a right to posthumous bodily

integrity, it would mean that people not only have the right to

refuse to have their corpse used for medical research, but also

they have a right to refuse to make a decision and still not have

their body studied. Given the benefit to the sick, medical

students, and society in general, it is less easy to justify this

outcome than if the dead themselves are construed as having a

right to their posthumous bodily integrity. If that were the case

it makes more sense to weigh the interest in posthumous bodily

integrity more heavily, since the potential harm is an unwilling

interference with the rights-holder’s body rather than the

knowledge that one’s critical interests may not be fulfilled if one

does not take affirmative steps to ensure they are protected.

This argument is, therefore, similar to one made above in

the organ donation context. However, in the medical education

and research context it is easier to justify giving priority to the

interests of the living in their posthumous bodily integrity over

those with competing interests than in the organ donation

context. This is because the competing interests in the medical

education and research contexts are less compelling than in the

organ donation context. In the former, there are important

benefits of medical education and research, but they do not

immediately save lives. A single cadaveric organ donor,

however, can save multiple lives. Thus, the law’s refusal to

allow the use of a person’s body for medical education and

research when that person’s wishes about such use are

unknowable is more justifiable, if the living have an interest in

posthumous bodily integrity, than the law’s refusal to allow

organ donation where the person’s wishes are unknowable. The

stakes are not as high.

Now consider my legislative proposal, above, that organ

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donation law allow organ procurement from cadavers where the

person’s prior wishes are unknowable. I argued that this was a

reasonable proposal if legislators (and the public generally) were

of the opinion that an interest in posthumous bodily integrity

does not survive death. In the context of medical research and

education such a proposal should be less objectionable than in

the organ donation context since there is less urgency regarding

the former than the latter. A greater window of time could be

allowed for finding next of kin so as to avoid the problem of

being unsure whether the deceased made her prior wishes

known. An amendment to anatomical gift laws could mirror

laws in some states that allow autopsy without the consent of

the next of kin only if the next of kin cannot be contacted within

a certain period of time. For example, Connecticut allows

autopsy without consent if a reasonable amount of time has

elapsed, during which the next of kin cannot be reached.

104

A

reasonable amount of time is defined as between 12 and 48

hours.

105

C.

C

HOOSING THE MEANS OF DISPOSAL

Laws in many states allow individuals to decide whether

they will be buried or cremated.

106

These laws also protect an

interest in posthumous bodily integrity. At common law,

individuals cannot make legally binding decisions about the

means of disposal of their bodies. This is because the law of

succession is said only to contemplate transfers of property and

one’s body is not property at common law.

107

Despite academic

challenges to both premises,

108

courts applying the common law

have consistently held that testamentary or other expressed

104. CONN.GEN.STAT. § 19a-286 (2009).

105.

Id.

106. See discussion infra Part IV.C.

107.

S

PERLING, supra note 18, at 150 (citing O’Donnell v. Slack, 55 P. 906 (Cal.

1899); In re Estate of Moyer, 577 P.2d 108, 110 (Utah 1978); Fischer’s Estate v.

Fischer, 117 N.E.2d 855, 859 (Ill. App. Ct. 1954)).

108. Id. at 150–53.

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wishes about the disposal of one’s corpse are not binding.

109

That said, most U.S. states have overridden the common

law on this matter through legislation. In many states, the law

grants individuals the right to decide for themselves how their

corpses will be disposed. For example, Arizona law provides

that: “[a] legally competent adult may prepare a written

statement directing the cremation or other lawful disposition of

the legally competent adult’s own remains . . . .”

110

Section C of

the same provision clarifies that if such a statement is made,

cemeteries and crematories do not need to obtain anyone else’s

consent to carry out the selected disposition.

111

Further, the

person who has the legal duty to dispose of the body must

follow the deceased’s wishes regarding disposal, subject to

exceptions relating to reasonableness and financial burden.

112

Many states have statutes similar to Arizona’s,

113

but some

grant to next of kin the right to decide the means of disposal,

114

while others allow individuals to designate whomever they wish

to make the decision.

115

Depending on the state, that designated

person may or may not be bound to follow any validly

expressed instructions left by the deceased.

116

In states where one may decide how one’s body will be

disposed, the decision is not unconstrained: in addition to

limitations of reasonableness and cost (mentioned above) there

109. See, e.g., Saleh v. Reichert (1993), 104 D.LR. 4th 384, 391 (Can. Ont. (Gen.

Div.)) (stating that in Canada “the expressed wishes of a person as to the

disposition of his or her body cannot be enforced in law.”).

110.

A

RIZ.REV.STAT.ANN.§32-1365.01(A) (2012).

111. A

RIZ.REV.STAT.ANN.§32-1365.01(C) (2012).

112.

A

RIZ.REV.STAT.ANN.§36-831.01(A) (2012).

113. See, e.g., 755 I

LL.COMP.STAT. 65/5 (2012).

114. See, e.g., A

LA.CODE § 34-13-11 (2013). In addition, all Canadian provinces

except Quebec and British Columbia leave that decision to the next of kin as a

matter of common law. See J. Downie et al., Family Override of Valid Donor Consent to

Postmortem Donation: Issues in Law and Practice, 40 T

RANSPLANTATION PROCEEDINGS

1255, 1257 (2008).

115. See, e.g., N.Y. P

UB.HEALTH LAW § 4201(2)(a)(i) (McKinney 2012).

116. See, e.g., N.Y. P

UB.HEALTH Law § 4201(2)(c) (McKinney 2012) (stating that

a decedent’s wishes are constrained by what the agent believes is “lawful and

practicable”).

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are restrictions relating to public safety and dignity.

117

Safety

concerns are reflected in laws that limit the locations in which

human remains (whether cremated or not) may be disposed –

for example not near a water supply.

118

Usually the choice is between burial and cremation,

119

but

other means of disposal may be legally available. For example,

in California having your body cryonically preserved – that is,

frozen and stored with the intent of being revived when

technology permits – is a legally valid means of disposal if a

cryonics company is selected as the donee of the body pursuant

to anatomical gift legislation.

120

One can also designate an organization like Body Worlds to

be the donee of one’s corpse through anatomical gift legislation.

Recall that Body Worlds exhibits preserved corpses for

educational and artistic purposes.

121

According to Body Worlds,

anatomical gift legislation is the legal mechanism by which it

receives corpses.

122

As a result, consent is required. (As

discussed in Part I.A, competitor Bodies: The Exhibition uses

Chinese bodies whose consent would not have been obtained in

accordance with anatomical gift law.) However, most states

have not legislated specifically in relation to preserved cadaver

exhibits, and so it is not clear that those states would apply their

anatomical gift law to this context in the same way as to organ

donation or medical research. Further, I am aware of no

litigation regarding whether an individual’s consent to donate

her body to Body Worlds is legally binding. Presumably Body

Worlds would prefer to relinquish any legal claim to a cadaver

117. See SPERLING, supra note 18, at 171–85 (outlining limitations on the ability to

determine the manner of disposal of one’s corpse).

118. See, e.g.,M

ASS.GEN.LAWS ch. 114, § 35 (2012).

119.

See, e.g., C

AL.HEALTH &SAFETY CODE § 7102 (West 2012) (listing burial,

cremation, and burial at sea as legally valid means of disposing of a corpse).

120. Alcor Life Extension Found., Inc. v. Mitchell, 7 Cal. Rptr. 2d 572, 575 (1992).

121. Mission of the Exhibitions,B

ODY WORLDS,

http://www.bodyworlds.com/en/exhibitions/mission_exhibitions.html (last visited

May 24, 2013).

122. Body Donation for Plastination, B

ODY WORLDS,

http://www.bodyworlds.com/en/body_donation.html (last visited Feb. 4, 2013).

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250 MARQUETTE ELDER’S ADVISOR [Vol. 14

rather than risk the public relations nightmare of fighting with

grieving survivors over the right to inject the deceased with

polymers and put her on public display.

Some states have proposed legislation that would prohibit

such exhibitions for profit without the deceased’s prior

consent,

123

but in most cases, these laws have not (yet) been

enacted. One exception is Florida where legislation prohibiting

certain displays of preserved cadavers without consent was

enacted in 2009.

124

State legislative proposals have tended to

emphasize the need for consent rather than proscribing such

displays entirely.

125

Contrary to this trend, Hawaii has banned Body Worlds-type

cadaver displays altogether, regardless of consent.

126

Hawaii’s

law followed, and presumably was triggered by, the Bodies: The

Exhibition scandal over the non-consensual use of Chinese

prisoners’ bodies.

Both cryonic preservation and preserved cadaver exhibits

have been controversial, worldwide, in that some do not

consider them appropriate and respectful ways of treating

human remains.

127

However, notwithstanding the controversy

surrounding the potential indignity, Americans can choose to

have their corpses cryonically preserved or put on public

display and the law may well protect this choice.

128

Although

neither the common law nor legislation grant a positive right to

be cryonically preserved or put on display, laws such as state

anatomical gift legislation and specific statutes regarding

123. See, e.g., H.R. 2299, 2008 Leg., Gen. Assemb., Reg. Sess. (Pa. 2008) (requiring

evidence of informed consent for public display of human remains); Assemb. 1519,

2008 Leg., 2007-2008 Sess. (Cal. 2008) (legislation was enacted in California but was

returned without Governor Schwarzenegger’s signature, and so did not become

law); S.B. 1130, 2011 Leg., Reg. Sess. (N.Y. 2011).

124.

F

LA.STAT. § 406.61 (2009).

125. Giunta, supra note 1, at 183–84.

126.

H

AW.REV.STAT. § 327-38 (2013).

127. See Giunta, supra note 1, at 185–89 (discussing that the French litigation

against Bodies: The Exhibition relied on arguments based on the dignity of human

remains).

128. See, e.g., Alcor Life Extension Found., Inc. v. Mitchell, 7 Cal. Rptr. 2d 572,

575 (1992); F

LA.STAT. § 406.61 (2009).

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choosing the means of disposal of one’s corpse reflect a policy

decision that people should be allowed to choose what becomes

of their human remains. Legislation like Florida’s Public Health

law reflects a view that such exhibits should generally be

permitted unless there was no consent for that use of cadavers.

129

Further, laws granting individuals the right to decide how their

corpses will be disposed of exemplify a legal right to

posthumous bodily integrity that takes precedence over the

wishes of the family and over some people’s sense of what

amounts to dignified treatment – at least in some states. That

interest, however, must give way to competing interests in other

contexts, such as where public health is at stake.

Having established that many states’ laws regarding

disposal of corpses grant a right to posthumous bodily integrity,

the question becomes whose posthumous bodily integrity? In

states that allow individuals to make the decision for

themselves, the law appears equally consistent with a view that

the interest ends at death or that it survives death. Allowing

individuals to decide for themselves could suggest that the dead

have an ongoing interest in how their bodies are treated, or that

only living individuals have an interest in how their future

corpses will be treated, but that allowing them to decide and

respecting that decision gives confidence to others that their

own critical interests will be protected.

However, the fact that some states maintain the common

law approach of not letting individuals decide for themselves

how their bodies will be disposed may suggest a view that the

interest in posthumous bodily integrity belongs only to the

living. It would arguably be a worse violation of a decedent’s

interests to make her final resting place one she would have

rejected than it would be a violation of a living person’s interest

in posthumous bodily integrity to simply deny him a say in

what his final resting place will be. This argument mirrors those

above in the organ donation and medical education contexts, in

129. FLA.STAT. § 406.61 (2009).

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252 MARQUETTE ELDER’S ADVISOR [Vol. 14

that it assumes a bodily interference contrary to the rights-

holder’s interests is worse than uncertainty in relation to

whether one’s interests will be fulfilled. In any event, it seems

inconsistent to respect posthumous bodily integrity regarding

organ donation, medical research and education, but not

regarding the means of disposal. The traditional response to the

uniqueness of anatomical gifts is that they involve an altruistic

act, but this does not obviously address why the interest in

posthumous bodily integrity should be diminished in the

context of choosing the means of disposal.

Another possible explanation is that one’s body must be

disposed in some way and the decision about means is about

alternatives, not about whether one’s body will be interfered

with at all. Organ donation and educational and research uses,

on the other hand, are by no means inevitable. Finally, part of

the answer seems to lie in what treatment of corpses is most

common. Almost everyone is either buried or cremated after

death, and both are common, whereas very few of us will ever

be organ donors and even fewer still will be cryonically frozen

or put on display in a museum. It may be that the more

unexpected the use of one’s cadaver, the greater the interest

individuals have in making a binding decision about that use,

since it is less likely to be acceptable to them.

D.

P

OSTHUMOUS REPRODUCTION

Posthumous reproduction refers to conception or birth after

the death of one or both biological parents.

130

It need not involve

interference with a corpse: for example, sperm or eggs can be

removed from the living and used to create an embryo after the

death of the genetic parent. This raises issues of reproductive

autonomy but need not implicate posthumous bodily integrity.

However, there are two types of reproduction in which

posthumous bodily integrity is necessarily implicated: post-

mortem sperm removal and the maintenance of a legally dead

130. John A. Robertson, Posthumous Reproduction, 69 IND.L.J.1027, 1027 (1994).

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woman’s body on life support to continue gestating a fetus.

Posthumous reproduction is largely unregulated in the

United States.

131

(A bill that would have required consent for

posthumous sperm retrieval was proposed in New York but was

never enacted.)

132

As a result, its permissibility, essentially,

depends on the protocols of clinics and hospitals.

Although there is no general legal right in the U.S. to

posthumous bodily integrity in relation to posthumous sperm

removal, the laws of certain other countries grant such a right

133

and the ethics literature in the United States suggests that

reproduction-related interferences with a corpse should not be

permitted without the deceased’s prior consent.

134

The situation is less clear regarding maintaining a pregnant

woman’s dead body on life support to enable a fetus to come to

term. On the one hand, in such situations, the woman’s prior

wishes appear to be legally determinative. Minnesota, for

example, which is among the states to have adopted the

Uniform Rights of the Terminally Ill Act or the Uniform Health-

Care Decisions Act, makes a woman’s wishes determinative.

Minnesota law provides that a pregnant woman is presumed to

have wanted to be maintained on life support for the purpose of

gestating her fetus to the point of viability.

135

However, this is

only a presumption. Clear and convincing evidence that the

woman’s wishes were to the contrary would preclude

maintaining her on life support.

136

(The requirement of “clear

131. See JESSICA ARONS,CTR. FOR AM.PROGRESS,FUTURE CHOICES:ASSISTED

REPRODUCTIVE TECHNOLOGIES AND THE LAW 1(2007).

132. Assemb. 8043, 1999–2000 Leg., Reg. Sess. (N.Y. 1999).

133. See e.g., Human Fertilisation and Embryology Act, 1990, c. 37, § 12, sch. 3

(Eng.); Assisted Human Reproduction Act, R.S.C. 2004, c. L-2 (Can.) (both

proscribing removing sperm for reproductive purposes without consent).

134. See, e.g., The Ethics Committee of the American Society for Reproductive

Medicine, Posthumous Reproduction, 82 F

ERTIL.&STERIL. S260, S261 (Supp. 2004)

(stating that a request by a surviving spouse for posthumous sperm removal need

not be honored). See also Frances Batzer et al., Postmortem Parenthood and the Need for

a Protocol with Posthumous Sperm Procurement, 79 F

ERTIL.&STERIL. 1263, 1263, 1265,

1268 (2003) (acknowledging the lack of regulation and recommending protocols

that would require actual or inferred consent to posthumous sperm removal).

135. M

INN.STAT. § 145C.10(g) (2012).

136. Id.

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and convincing evidence” distinguishes posthumous sperm

removal, where the presumption is generally that the deceased

did not want to reproduce posthumously, from the situation of a

pregnant woman on life support.)

The University Health Services, Inc. v. Piazzi case,

137

however,

suggests a different approach than Minnesota’s. It involved a

legal battle in Georgia over whether to maintain Donna Piazzi’s

legally dead body on life support in order to allow her fetus to

develop. She had left no instructions regarding this situation

and her husband and family opposed continued life support.

The biological father of the child, however, who was not Piazzi’s

husband, petitioned for the body to be maintained on life

support. The court held that since Donna Piazzi was dead she

had no constitutional right to privacy and relying in part on a

pregnancy clause in Georgia’s Natural Death Act, it granted the

biological father’s petition.

138

Thus, despite no prior (explicit or

inferred) consent to having her body maintained on life support,

the court allowed such treatment of her body.

139

The

inconsistency with Minnesota law lies not in the outcome but in

the fact that the court treated Donna Piazzi’s wishes as

irrelevant. That said, the case has been criticized as both poorly

reasoned and as having little precedential value, given its

reliance on the specific pregnancy clause of the Natural Death

Act.

140

Even when consent is required, it is not clear to what extent

the law aims to protect posthumous bodily integrity per se, as

opposed to reproductive autonomy. Carson Strong notes that

the requirement for consent to posthumous sperm retrieval can

relate to two different issues: the physical interference with the

bodies of the dead and the reproductive issue.

141

(And the same

137. Univ. Health Serv., Inc. v. Piazzi reprinted in 2 Issues L. & Med. 415 (1987).

138. Id. at 416–18.

139. Id. at 418.

140. See, e.g., D

ANIEL SPERLING,MANAGEMENT OF POST-MORTEM PREGNANCY:

LEGAL AND PHILOSOPHICAL ASPECTS 133 (2006).

141. Carson Strong, Ethical and Legal Aspects of Sperm Retrieval After Death or

Persistent Vegetative State, 27 J.L.

M

ED.&ETHICS 347, 347–48 (1999).

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is true regarding interferences with a dead pregnant woman’s

body.) He suggests that the former is only problematic in the

absence of consent.

142

It may, therefore, be that guidelines in

relation to posthumous reproduction are largely consistent with

other laws granting a right to posthumous bodily integrity.

However, given the lack of legislation and case law in this

emerging area of the law, it is too soon to say what rights people

have in relation to reproduction-related interferences with their

corpses.

What is clear is that requiring prior consent for posthumous

reproduction would protect a right to posthumous bodily

integrity in a manner consistent either with the dead or only the

living being the rights-bearer. On Feinberg’s model the dead

rights-bearer would have an ongoing interest in the treatment of

her body and perhaps also in making reproductive decisions.

Prior consent should, therefore, be required, especially since

competing interests are weaker than in the organ donation

context, for example. The competing interest primarily involves

the deceased’s partner’s interest in having a child with the

deceased.

On Kramer’s model, the existence of ongoing interests that

could ground rights would depend on whether the deceased’s

prior wishes regarding posthumous reproduction were known

to living people. If they are not known, posthumous

reproduction without consent cannot harm the deceased’s

interests in posthumous bodily integrity because she would

have none. Any harm to an interest in posthumous bodily

integrity would be in relation to the interests of the living, who

do not want to be posthumous parents without their explicit

consent. In that case, the law would likely still require prior

consent for posthumous reproduction so as to reassure the living

that they will not be posthumous parents without consent.

As with other laws that grant a right to posthumous bodily

integrity, requiring prior consent, although consistent with the

142. Id. at 348.

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256 MARQUETTE ELDER’S ADVISOR [Vol. 14

dead having or not having an interest in posthumous bodily

integrity, is easier to justify on the former view. The interests of

the living in posthumous bodily integrity are implicated either

way, but if the dead also have such an interest, posthumous

reproduction against the deceased’s prior wishes amounts to an

additional, and not insignificant, interference with posthumous

bodily integrity.

E.

R

IGHT TO REFUSE AN AUTOPSY

Autopsy is generally unlawful without consent, subject to

certain exceptions related to law enforcement and public

health.

143

Some states provide for the deceased individual’s

prior consent or refusal. In New York, for example, if the

deceased is carrying a notarized card indicating a refusal to be

dissected or autopsied, that must be respected, subject to the

exceptions noted above.

144

As in the anatomical gift context, in

the absence of consent or refusal by the deceased, the next of

kin’s consent to autopsy must be obtained.

145

In many states,

however, there is no provision for the individual herself to

consent.

146

This may reflect a view that the next of kin has a

better moral claim to consenting to autopsy than the individual

herself or, more likely in my opinion, it may reflect the common

law, by virtue of which the next of kin had rights and duties

associated with the right of possession of a corpse. Not

providing for individuals to legally refuse autopsies on their

own body may also simply reflect the fact that it is rare for

someone to indicate a refusal to be autopsied before her own

death.

143. See, e.g., N.Y. PUB.HEALTH LAW §§ 4209-a, 4210, 4210-c (McKinney 2012);

M

O.REV.STAT. § 194.115(1) (2012).

144. N.Y. P

UB.HEALTH LAW §§ 4209-a, 4210, 4210-c (McKinney 2012). Other

states have similar provisions in regards to providing prior consent or refusal to

autopsy. See 410 I

LL.COMP.STAT. 505/2 (2012), and N.M. STAT.ANN. § 24-12-4(A)(1)

(2012).

145. See, e.g.,410 I

LL.COMP.STAT. 505/2(b) (2012); N.M. STAT.ANN. § 24-12-4(A)

(2012).

146. See, e.g., C

ONN.GEN.STAT. § 19a-286 (2012).

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In states like New York, laws requiring consent for autopsy,

like the other laws examined in this section, exemplify a legal

right to posthumous bodily integrity. Laws requiring consent

for autopsy are equally consistent with only the living or also the

dead having an interest in posthumous bodily integrity. The

living have critical interests in the treatment of their corpse,

including its dissection for autopsy, and if those interests

survive death, dead individuals would have a similar interest in

how their cadaver is treated. As always, however, the argument

for requiring consent is somewhat stronger if the dead and the

living both have an interest in posthumous bodily integrity.

F.

T

HE LONG DEAD

I conclude with one context in which posthumous bodily

integrity receives very little legal protection: that is, in relation to

the long dead. Museums frequently contain displays of ancient

human remains, and these are generally much less controversial

than Body Worlds-type exhibits. Most people have no objection

to the display of the bodies of the long dead. In a survey

conducted in the United Kingdom by English Heritage,

approximately 90% of respondents claimed to be comfortable

with displaying prehistoric human bodies in museums.

147

Evidence of this acceptance also comes from the fact that

exhibits of human remains are among the most popular.

148

Further evidence is that the new Hawaii law banning the display

of corpses for commercial purposes excludes the bodies of those

who have been dead for more than 80 years.

149

Part of the reason why Body Worlds is more controversial

than a museum mummy exhibit may relate to the way in which

bodies are displayed. In the former, bodies are artistically

posed, being made to appear to be exploding or performing a

147. BDRC, RESEARCH INTO ISSUES SURROUNDING HUMAN BONES IN MUSEUMS

(2009).

148.

T

IFFANY JENKINS,CONTESTING HUMAN REMAINS IN MUSEUM COLLECTIONS

127 (2011).

149.

H

AW.REV.STAT. § 327-38(c)(1) (2012).

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trapeze routine. One recent controversy even involved corpses

posed in sexual positions.

150

The bodies are highly manipulated,

both in terms of the polymers that are introduced into the body

and the manner of display.

However, much of the difference in the degree of

controversy surely relates to the timeline involved. The

deceased on display in Body Worlds have all died within the past

few decades, and many have living relatives. Ancient mummies

and other prehistoric human remains are long dead. Not only is

no one alive who knew them in life, but in many cases their

culture and way of life no longer exists. They are truly foreign

to us. It is surely no coincidence that the Hawaii legislation

exempts bodies of those dead 80 years or more, 80 years being a

person’s approximate life span. We can infer that the reason for

choosing 80 years was to ensure the impossibility of viewing, on

display in a museum, the body of someone one knew in life.

Simply put, the law allows the display of ancient corpses in

museums without the individuals’ prior consent but, assuming

anatomical gift legislation governs the procurement of corpses

for these exhibits, does not allow the display of the recently dead

without consent.

151

This can perhaps be explained in part by the

fact that there are property rights in long dead corpses but not in

recently dead ones.

152

U.S. federal laws governing the treatment of ancient human

remains focus on two issues: what to do if ancient remains are

discovered, and the repatriation of remains – especially Native

American remains – in the possession of others. The federal

150. Jason Rhodes, Body Worlds Plans Cadaver Show Dedicated to Sex, REUTERS,

Sept. 11, 2009, http://www.reuters.com/article/idUSTRE58A4Z220090911.

151. Strictly speaking it is not display that would be prohibited under

anatomical gift legislation. Rather, Body Worlds has no right to the body in the first

place in the absence of consent. Given that Body Worlds preserves bodies for the

purpose of putting them on public display, it is arguable that consent would be

insufficient unless it contemplated display. However, many current donors do not

leave instructions as to how to display their bodies, “dismissing this as vanity.” See

Jason Rhodes, Body Worlds Plans Cadaver Show Dedicated to Sex, R

EUTERS, Sept. 11,

2009, http://www.reuters.com/article/idUSTRE58A4Z220090911.

152. See S

PERLING, supra note 18, at 108–110, for an examination of the long

dead exception to the no property rule regarding human remains.

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Native American Graves Protection and Repatriation Act

(hereinafter NAGPRA)

153

provides that Native Americans have

the best claim to the remains of Native Americans newly

discovered on federal or tribal land.

154

It also provides that

federal institutions in possession of the remains of Native

Americans must inventory them, notify the Native American

group to which the deceased belonged, if possible, and return

the remains to the Native American group if requested to do

so.

155

Note that the Act does not require the repatriation of the

remains of non-Native Americans – of ancient mummies for

example.

156

(Although the reality is that any ancient remains

newly discovered in the United States will be those of Native

Americans, U.S. federal institutions may well be in possession of

ancient remains of non-Native Americans).

A thorough discussion of the law governing the treatment

of ancient remains is beyond the scope of this article, but what is

important to note about NAGPRA is that it does not require the

prior consent of the individuals whose remains are at issue for

any of the permitted actions. Of course, obtaining such prior

consent is impossible in the case of ancient remains, and so it

makes a certain amount of sense to focus on the wishes of

descendants. However, NAGPRA differs from laws such as the

UAGA in that it contains no default rule that no interferences

are permitted without the consent of the deceased or of a

surviving family member. Under the UAGA, a failure to find a

relative who can give consent means that organ donation or

medical research cannot legally occur.

157

The same is true in

many states regarding autopsy (subject to certain exceptions).

158

Certainly cryonic preservation or display in a Body Worlds

exhibit are impermissible without consent.

159

Under the

153. 25 U.S.C. § 3001–13 (1991).

154. 25 U.S.C. § 3002(a) (1991).

155. 25 U.S.C. §§ 3003, 3005(a) (1991).

156. See 25 U.S.C. § 3005(a)(4) (1991).

157. See discussion supra Parts IV.A–B.

158. See discussion supra Part IV.E.

159. See discussion supra Part IV.C.

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NAGPRA, however, an inability to find a “culturally affiliated”

group

160

triggers obligations but does not necessarily preclude

display or research on the remains.

161

Another difference is that cultural affiliation need not be

based on genetic or other family ties. Although the reliance on a

broader concept of cultural affiliation may simply reflect

evidentiary difficulties in proving a genetic relationship, it

appears also to reflect a desire to respect cultural traditions,

values and beliefs regarding the dead. In repatriating bodies to

Native American groups culturally affiliated with those former

people, the law is not only saying that it is for those people’s

direct descendants to decide what happens to the body, but that

the bodies should be treated in a culturally appropriate way.

The law does not appear to protect an individual’s interest in

bodily integrity – it protects the cultural descendants’ interests

in disposing of their dead according to their own custom. As

discussed above, there are laws that protect the interests of

society in the dignified treatment of human remains (the

requirement to dispose of corpses in a dignified manner, for

example). NAGPRA appears to reflect a desire to protect this

kind of interest rather than an interest in posthumous bodily

integrity.

Thus, laws in relation to the bodies of the long dead do not

appear to protect an interest in posthumous bodily integrity.

The theories of interests of the living and the dead in the

treatment of their own corpses may help to explain why the law

treats the long dead differently than the recently dead regarding

posthumous bodily integrity. If an interest in posthumous

bodily integrity belongs only to the living, those interests expire

when the individual does. We have seen that in that case,

respecting people’s wishes is important not because we owe any

duties to the dead, but because we wish to give confidence to the

living that their own wishes will be respected. In addition, it is

wrong to break promises even if it is not a wrong to the

160. 25 U.S.C. § 3001(2) (1991).

161. See 25 U.S.C. § 3005 (1991).

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deceased.

Non-consensual interferences with the bodies of the long

dead may pose less of a threat to the living than interferences

with the recently dead and do not implicate broken promises.

Those who exhibit ancient Egyptian mummies, of course, did

not promise those ancient Egyptian people that their wishes not

to be disturbed would be respected, and so no promises have

been broken. In terms of giving confidence to the living that

their wishes will be respected, it is easier for us to identify with

the recently dead, and especially those whom we knew

personally, than with ancient corpses. We may not personally

want our future corpses put on display, but the display of an

Egyptian mummy does not make us fear that our own wishes

regarding our corpses will be ignored. This is not only because

we are less able to relate to the ancient dead, but also because

the law protects us differently than it protects the ancient dead.

We can, therefore, fulfill the critical interests of the currently

living in not having their future cadavers put on display while

still placing ancient corpses on display.

However, putting ancient corpses on display may be more

problematic if the dead have an ongoing interest in bodily

integrity, depending on the approach taken to the interests of the

dead. According to Smolensky, the interests of the dead can

only stay the same over time or diminish.

162

This view derives

from Kramer’s theory of interests in which the dead have

interests only because, and to the extent that, the living have

knowledge of specific deceased people.

163

For example, dead

people such as one’s grandmother or Shakespeare continue to

have interests because they live on in the minds of the living,

whereas those who are dead and forgotten have none.

According to this approach, it makes sense to view the interests

of the dead as diminishing – or at least disappearing – over time,

although it is not clear how this actually works. Do a dead

person’s interests remain so long as one person remembers her?

162. Smolensky, supra note 14, at 789–91.

163. See discussion supra Part II.D.

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Do they diminish in degree or do they exist fully until the

deceased is no longer remembered by anyone? Regardless, it is

clear that according to Kramer’s theory, the dead will have no

interests once they are completely forgotten.

Since no one now exists who knew the ancient dead

personally, and most ancient dead are anonymous, a Smolensky-

Kramer approach would suggest that those decedents lost their

interest in posthumous bodily integrity centuries ago. As former

human beings, we should treat their bodies with respect (which

may or may not argue against their public display), but they,

themselves, no longer have any moral claim to bodily integrity.

An interesting issue arises, however, in relation to the

ancient dead who were not anonymous. Much is known about

certain ancient Egyptian Pharaohs: Ramses II and Tutankhamen

continue to exist in the minds of at least some. Have they then

retained their interest in posthumous bodily integrity? If so, this

raises a number of questions, not pursued further here, about

why the famous dead should have different moral claims to

bodily integrity than the anonymous dead. It also raises the

question whether interests can be lost with anonymity, but then

regained if new information comes to light. Suffice it to say that

even the theory of interests of the dead proposed by Smolensky

and Kramer cannot fully account for our treatment of the ancient

dead because we do not apply different consent requirements to

the ancient dead depending on whether they are anonymous or

known.

Feinberg and Pitcher’s ante-mortem person theory of the

rights of the dead fit even less well with our law and practices in

relation to the long dead. Recall that according to these

approaches it is not clear that the interests of the dead in their

bodily integrity would ever diminish or disappear.

164

If their

interests are independent of people’s knowledge and memory of

the dead, they could presumably persist indefinitely.

If the dead have interests that do not diminish over time,

164. See discussion supra Part II.D.

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then there is no reason to treat the ancient dead differently from

the recently dead in relation to their interest in bodily integrity

(unless the competing interests of the living take on greater

weight over time, but it is not clear why this would be so).

Extrapolating from Feinberg and Pitcher, we should seek to

determine what the ancient dead person would have wanted

and respect those wishes absent a compelling reason to do

otherwise. If we are unable to determine what the person would

have wanted, we should err on the side of caution and limit any

interferences with the corpse – especially ones that most people

would not agree to, such as public display. This would lead to

the conclusion that unless other benefits of exhibits, for example

educational value, are such as to outweigh the deceased’s

interest in posthumous bodily integrity, we should not exhibit

an Egyptian mummy’s corpse in a museum. This is especially so

given that it is inferable based on ancient Egyptian culture and

the efforts that were made to protect the tombs of mummies that

the ancient Egyptians did not want their corpses put on public

display.

To summarize, the law treats ancient corpses differently

than those of the recently dead. The former may be the subject

of research or educational display without the consent of the

deceased or her relatives. No such conduct is legally permissible

in relation to the recently dead without the prior consent of the

deceased or the substitute consent of the next of kin. The

theories underlying an interest in posthumous bodily integrity

provide different explanations for why this may be the case. If

only the living have an interest in posthumous bodily integrity,

then non-consensual actions in relation to an ancient corpse do

not violate that interest any more than non-consensual actions in

relation to the recently dead violate the interest. The difference

lies in the need to give the living confidence that their wishes

will be respected after death. Since the ancient dead were not,

while alive, subject to modern legal regimes, and because we do

not as readily identify with the ancient dead than with the

recently dead, treating the ancient dead differently does not

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threaten people’s confidence that their own wishes will be

respected after their deaths.

If the dead themselves have an ongoing interest in

posthumous bodily integrity, it may still make sense to treat the

ancient dead differently if posthumous interests are tied to the

deceased living on in the knowledge and memory of the living.

Assuming that the ancient dead are anonymous, their

posthumous interests have expired. However, if the ancient

dead are not anonymous, or if we take a view of posthumous

interests that does not require the dead to live on in the memory

of the living, it is harder to explain why the ancient dead should

be granted little or no right to posthumous bodily integrity

when the recently dead have significant rights in relation to the

same interests.

V.

C

ONCLUSION

Laws granting a right to posthumous bodily integrity

demonstrate that American society considers it appropriate to let

individuals make many decisions about what will happen to

their own dead bodies, even in the face of compelling competing

interests, such as those of potential organ recipients. Given the

widespread nature of Americans’ right to make binding

decisions about the treatment of their corpses it could be argued

that a general right to posthumous bodily integrity exists;

although, it is not my aim to argue for the existence of such a

general right, especially given variation between states on some

issues, such as the ability to decide how one’s body will be

disposed or the ability to refuse an autopsy. It is important to

note, however, that the legal right to make decisions about the

treatment of one’s corpse is not narrow or limited, for example,

to the organ donation context. Rather, the law sets out a wide

range of contexts in which, within reason, individuals have

priority in deciding what happens to their own bodies after

death.

It is often unclear, however, whether these laws derive from

a view that the dead, themselves, have sufficient moral status to

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be deserving of an ongoing right to posthumous bodily

integrity; or whether they derive from a view that the dead have

insufficient moral status, but that it is nevertheless important for

the living to have confidence that their wishes regarding the

treatment of their corpses will be respected. To the extent that a

right to posthumous bodily integrity applies even to those

whose wishes are unknown, this is easier to reconcile with the

view that the dead have an ongoing interest in posthumous

bodily integrity. However, the different treatment of the ancient

and recent dead is more consistent with a view that only the

living have an interest in posthumous bodily integrity.

It is impossible to say with any certainty whether the

bearers of legal rights to posthumous bodily integrity are the

dead or only the living because: a) legislators appear not to have

explicitly considered the issue in enacting laws; and b) there are

often multiple possible explanations for the law’s requirements.

For example, the fact that the UAGA requires consent for organ

donation even from those whose wishes are unknowable could

reflect a view that the dead have an interest in posthumous

bodily integrity, that in that situation families’ interest in

deciding what should happen to the corpses of their family

members is entitled to considerable weight, or that a law that

drew a distinction on the basis of whether one’s wishes are

knowable would be politically unpalatable.

Thus, any conclusions drawn from the structure of these

laws as to whether the dead are viewed as rights-holders are

speculative. However, the value of the exercise is to

demonstrate the moral implications of different interferences

with a corpse depending on the approach one takes to the

identity of the rights-holder. With this analysis in place, a

legislator or member of the public who has a view about

whether the dead are properly bearers of rights (and if so, what

kinds of rights) can make policy arguments that properly

balance the protection of posthumous bodily integrity against

competing interests in the treatment of a corpse. By considering

whose interest in posthumous bodily integrity was being

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protected and why, lawmakers might find ways to increase the

supply of donor organs or research cadavers without causing

any additional harm to recognized interests. For example, if we

agreed that the dead have no interests, we would presumably

consider it more acceptable to take the organs of those whose

wishes, while alive, are unknown. Alternately, if the dead do

have interests, legislators might choose to give greater legal

protection to the bodies of the ancient dead. They might

institute bans on public display where it could reasonably be

inferred that the deceased would have opposed display, as is the

case with Bodies: The Exhibition.

In focusing on individuals’ interest in posthumous bodily

integrity, the aim has not been to suggest that this should be the

only, or even the primary, basis for setting policy regarding the

treatment of corpses. The arguments above are not inconsistent

with a view that we should conscript organs, even in the face of

opposition, or that Body Worlds-type displays are undignified.

This article has little to say about how much weight should be

given to a right to posthumous bodily integrity when it conflicts

with competing rights. Rather, it has shown that there are

implications for moral conduct, and thus for policy, in relation to

dead bodies that flow from how one construes an interest in

posthumous bodily integrity. If the dead have no interests – if

they cannot be the proper subject of rights because they do not

have sufficient moral status – then our treatment of corpses

cannot harm the dead. It can, of course, hurt the living in

various ways, but not the dead. If that is the case, then the only

reason to abide by the wishes of the dead is to benefit the living

– either living individuals who care that their own corpses will

be treated in a certain way, living members of a society that

wants to be the kind of society that respects the wishes of the

dead, living people who stand to benefit from donated organs or

medical research, or living loved ones of the deceased who have

a stake in how the corpse is treated. If, however, the dead

continue to have a moral stake in the treatment of their bodies,

they have a claim to a certain kind of treatment even if we don’t

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know what treatment they actually wanted for their corpses.

Posthumous bodily integrity clearly matters, but it is

unclear why. If we could agree as to why it matters, we could

enact laws to protect it in a more principled and consistent

manner. Even if we cannot agree, we can at least be clear about

what it is we are trying to achieve in enacting laws that protect

posthumous bodily integrity.