The Right to Posthumous Bodily Integrity and Implications of Whose Right It Is Hilary Young

Marquette Elder's Advisor Volume 14 Article 3 Issue 2 Spring

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

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Recommended Citation 14 MARQ. ELDER’S ADVISOR 197 (2013)

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Elder's Advisor by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 33718-mqe_14-2 Sheet No. 31 Side A 07/02/2013 13:56:24 , The The 1 EUTERS , R hibition.com Bodies: The Bodies: The ORAL and and 2 L. 164 (2010) (giving L ' :AM RANSNAT Body Body Worlds .J.T , http://www.bodiestheex XHIBITION E OLUM 197 ) 6/17/2013 1:02 PM , http://www.bodyworlds.com/en/prelude.html 4 XHIBITION The Dead on Display: A Call for the International E , 49 C ELETE Hilary Young* Young* Hilary D ORLDS ODIES THE ODIES OT W N O &B Body Worlds Plans Cadaver Show Dedicated to Sex ODIES ODIES THE ODY Lisa Giunta, Giunta, Lisa B B ORLDS .MACROS (D aim to be both educational and artistic. The dead are 3 , W OUNG See generally See generally See generally .Y ODY Millions of people in dozens of cities around the world have world Millions have of around the in of cities dozens people NTRODUCTION I ONTROVERSY UBLISHED A. B Exhibition 4. Jason Rhodes, Rhodes, Jason 2013). 14, May visited (last 4. flocked to museum exhibits of preserved human cadavers. 2. by raised exhibits). these issues and ethical legal and the exhibits background on the 2. best-known versions of exhibits, versions best-known the 1. Cohen foron drafts his feedback valuable of this article. 1. * Hilary Young is an Assistant Professor at the Faculty of Law at the University of New Brunswick. Alstott and The the students author in wishes Harvard’s Legal to helpful comments Scholarship on this thank seminar work. She for especially Anne wishes to thank Glenn C THE RIGHT TO POSTHUMOUSTO RIGHT THE INTEGRITYBODILY RIGHT OF IMPLICATIONS AND WHOSE IS IT P 3. 2013). 14, May visited (last 3. simultaneously. A fetus still inside its dead mother is on view, and in a Body Worlds exhibit in Berlin, bodies though were they posed were as having sex. Stripped of flesh, the copulating cadavers caused controversy, which is nothing new exhibits. boundary-pushing for these 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 I. Regulation of Plastination Exhibits M K C Y 33718-mqe_14-2 Sheet No. 31 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 31 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 31 Side B 07/02/2013 13:56:24 M K C Y As a a As 5 [Vol. 14 14 [Vol. -type displays -type of Body Body Worlds ) 6/17/2013 1:02 PM ELETE D OT Part IV. IV. Part N O infra undignified if there was prior consent). consent). prior was there if undignified MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE less less .MACROS (D 6 discussion discussion OUNG See See id. .Y A second potential objection A to potential objection second There There are essentially three types of moral objection that can A third potential objection to preserved cadaver exhibits UBLISHED regardless regardless of, or in the absence of, the expressed wishes of the deceased. the friends and family of the rendered deceased. Although anonymous bodies are by identifying features, removing families could object skin, to their the loved hair, very one’s idea remains suffering of and this fate. This differs other the from indignity example above in that humanity in the general, but rather to harm specific individuals by virtue here is not to 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 possessory rights in a corpse to next of kin and allow next is of kin recognized in to laws make that decisions about grant the treatment of the body – either human cadavers is the harm such use of corpses could cause to society, we recognize the possibility that undignified treatment of the can thedead harm as living public a whole. This potential criticism of preserved cadaver exhibits may be independent of any by consent prior the deceased. If one thinks to it undignified put corpses on public display for regardless profit, of one whether may the think deceased this it may think consented (although one 5. Sept. 11, 2009, http://www.reuters.com/article/idUSTRE58A4Z220090911. 5. prohibitions prohibitions on the undignified treatment of a corpse. 198 be levied against this kind dignitary argument might claim of that it is undignified to display display of human corpses. human bodies A in this manner or to dead this our in to treat human public the living That is,it harms display bodies for profit. way. Such dignitary concerns explain why, legally require for example, the we dead to be disposed cremated) of in (usually a buried dignified or manner or why states have criminal P 6. 6. relates to harm to the individuals themselves, either before or 33718-mqe_14-2 Sheet No. 31 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 31 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 32 Side A 07/02/2013 13:56:24 OOM OOM Body Body R ITY C IMES IMES 199 T , N.Y. relates to a lack of prior 8 http://www.ag.ny.gov/press-release/cuomo- http://www.ag.ny.gov/press-release/cuomo- ) 6/17/2013 1:02 PM ELETE D OT This article examines such laws granting granting laws such examines article This 9 Part IV. IV. Part N available at available at , was unable to establish consent for this for was , unable consent touse establish O Bodies: Bodies: The Exhibition infra ‘Bodies’ ‘Bodies’ Show Must Put Up Warnings It was alleged that some of these bodies were were bodies these of some that alleged was It 7 POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D discussion discussion OUNG -type -type displays. See .Y (May (May 29, 2008, 12:14 PM), http://cityroom.blogs.nytimes.com/2008/ Sewell Chan, Chan, Sewell It is, I think, intuitively obvious that the prior wishes of the This third potential objection is not unique to the display of LOG UBLISHED those of executed Chinese prisoners. executed Chinese of those “bodies. . . .the Exhibition” Ends the Practice of Using Human 7. Remains of Suspect Press Origins Release, (May 29, N.Y. 2008), settlement-bodies-exhibition-ends-practice-using-human-remains-suspect-origins. State Attorney General, See Cuomo also Settlement With B 2013] 2013] after best their death. explains This the objection potential policy of seeking the controversy over individual’s consent. In consent by fact the people whose bodies much were used. of For New York governor Andrew reacted Cuomo with to concern the example, the fact that Premier Exhibitions, Exhibition Bodies: The the company responsible of for the bodies. P only the rights of living confidence individuals their in wishes order will to protect be the give dead as respected, well. them It or also examines the whether implications policy for of they whether the dead are rights viewed in relation to as their bodies. capable For of example, if all having rights are viewed as ending at death, it may be easier to justify procuring organs from those whose consent. of absence the in even unknown, wishes about organ donation are individuals individuals the right to make decisions about the treatment of their future corpses. It asks whether these laws aim to protect 9. settlement-bodies-exhibition-ends-practice-using-human-remains-suspect-origins. 9. 8. Press Release, N.Y. State Attorney General, Cuomo Settlement With With Settlement Cuomo General, Attorney State N.Y. Release, Press 05/29/bodies-exhibit-must-put-up-warnings/. 8. “bodies. . . .the Exhibition” Ends the Practice of Using Human Remains of Suspect Origins (May 29, 2008), cadavers: cadavers: there are many laws that posthumous bodily integrity by individuals the granting right to reflect the importance of make decisions about the treatment These include of organ donation their law and future laws that allow corpses. choose one to burial or cremation, as Worlds well as laws governing M K C Y 33718-mqe_14-2 Sheet No. 32 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 32 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 32 Side B 07/02/2013 13:56:24 M K C Y REATMENT OF OF REATMENT [Vol. 14 14 [Vol. T EGARDING R ) 6/17/2013 1:02 PM ELETE D OT NDIVIDUALS I N In addition, if we assume that the Chinese Chinese the that assume we if addition, In O 10 MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE IGHTS OF OF IGHTS .MACROS (D R ORPSES OUNG C .Y Second, Second, we may grant the ability to make decisions about There are at least three reasons why lawmakers would EGAL L HEIR HEIR UBLISHED 10. There is actually philosophical controversy over whether the dead can be be can dead the whether over controversy philosophical actually is There 10. harmed. This possibility will bediscussed in detail incontinuing parts. she she can be harmed. T 200 deceased are morally relevant to certain treatments of remains: it human is somehow wrong to put Chinese prisoners’ bodies on display without consent, or perhaps to bury so. someone be should why that clear it is less But cremated. to be wanted who How is the non-consensual display someone who wanted to of be cremated, wrongful? The cadavers, deceased or burying presumably has no awareness of her present condition or capacity to it; be by affected and, any it, is not therefore, obvious that P the treatment of one’s own corpse because about living what happens to people their bodies care after death and we want to give them confidence that their wishes will be death. respected On this view, the after dead need not have rights. The reason the treatment of their own corpses. First, we may think that the dead have an ongoing interest in bodies. the integrity of Living their individuals dead have integrity an that interest in grounds their consent. We may bodily conceive rights of this interest in bodily integrity as against surviving death, such that interference to prior contravene people’s wishes is without to harm the dead. The theory that the dead have interests that can ground rights is controversial, but it may be the easiest reconcile to with some laws granting cadaver. future one’s about rights to make decisions recognize recognize a legal right of individuals to make decisions about prisoners prisoners or the whose people fate it was to be never buried had any that inkling 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. 33718-mqe_14-2 Sheet No. 32 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 32 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 33 Side A 07/02/2013 13:56:24 201 OLDERS H NTEREST NTEREST I ) 6/17/2013 1:02 PM ELETE D OT N ECEASED O D POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS ERSUS .MACROS (D V OUNG .Y The focus of this article is the first two reasons for Third, Third, we may protect an interest in posthumous bodily This article, therefore, considers two potential interest- IVING IVING L UBLISHED C. see ourselves in a certain light: the dead. of wishes the respecting it is society that benefits by protecting posthumous bodily integrity. The ignored, third just is as other largely competing interests in corpses (those the of treatment potential organ of 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 by death. extinguished is integrity bodily in interest bodily integrity, or whether the because 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 the that importance of an interest in derives, in least at from we want the fact part, society that a as to posthumous bodily integrity 2013] 2013] for respecting people’s wishes, even after they are give dead, comfort is to the to living. This is uncontroversial: we want to give the living confidence that their wishes will regardless of whether be we also view the respected, dead as having interests right. own their rightsin and integrity because, as a society, people we who wish respect to the see wishes ourselves of as the dead. This could be P holders: holders: the living individual in cadaver, relation and to the deceased her “individual” own term) (for in relation future to her lack (present) cadaver. It of then addresses the a better implications of whose interests the law aims to protect when it grants individuals the right to make binding decisions about the M K C Y 33718-mqe_14-2 Sheet No. 33 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 33 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 33 Side B 07/02/2013 13:56:24 M K C Y The laws laws The 11 [Vol. 14 14 [Vol. §§ 13, 18 (1965). ORTS ) 6/17/2013 1:02 PM T ELETE OF OF ) D 12 OT N O ECOND (S MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG ESTATEMENT .Y While alive, we all have an interest in bodily integrity that is is that integrity inan interest bodily have we all alive, While That one’s interest in one’s body, and related legal UBLISHED 11. R 11. consensual consensual touching: any physical interference without consent is potentially criminal assault and tortious battery. 202 treatment of corpse. their This is not to denyothers that have an interest in the treatment potential of organ recipients are just two a examples. However, the corpse: surviving question at family issue is: what follows from a and view that the dead do, or do not, have an ongoing interest in their posthumous bodily integrity? protected by law. For example, the law prohibits non- P their bodies after they die. Many care their deeply bodies about whether are buried or research, or treated cremated, with dignity, and the whether their organs subject are of transplant. for removed medical serious bodily harm. The existence of competing interests does not negate the fact that individuals happens have to their own bodies an and that this interest interest is, to varying in what by law. protected degrees, protection of the interest, should also extend to one’s dead body is not obvious. Yet few interferences with a corpse, other than consent without – are somedisposal, permitted of dignified kind either the of prior consent of the or consent deceased substitute the next of kin. This consider is how perhaps much many not people so care about surprising what when happens to we that protect a person’s interest in bodily rights integrity to grant living legal individuals. is rights-holder That the individual whose body is at is, stake. As with perhaps obviously, the 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 As a dignity. with treated are bodies human living ensuring that cannot result,legallyto, suchbe some interferences consented as 12. A poignant example can be found in Drew Gilpin Faust’s excellent book on on book excellent Faust’s Gilpin Drew in found be can example poignant A 12. death in the Civil War. One soldier worried: “It is dreadful to contemplate being 33718-mqe_14-2 Sheet No. 33 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 33 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 34 Side A 07/02/2013 13:56:24 HIS ,T living living on the AUST F only only ILPIN ILPIN 203 G 63 (2008). (2008). 63 AR REW REW W to the deceased IVIL IVIL C MERICAN A ) 6/17/2013 1:02 PM ELETE D OT N EATH AND THE O :D POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D UFFERING S OUNG .Y Whether Whether a right to posthumous bodily integrity belongs to Alternately, Alternately, the legal right to posthumous bodily integrity In granting individuals the right to decide what happens to EPUBLIC OF UBLISHED insight insight emerge. First, the reasons for who the on posthumous are depending bodily integrity different having laws protecting more laws are some extent that to the Second, are. rights-bearers 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 of eye the world or the gnawing of animals and buzzards.” D R death. death. Several scholars consider having the moral dead status to and be of capable article possessing of legal considers rights, and the considered the to basis have an interest on in posthumous bodily integrity which and what implications would follow for the law if they had such the dead interest. an could be the living individual only or survives death may seem a rather fine, and perhaps irrelevant distinction: the relevant laws apply regardless. However, rights-bearer,of perspective potential the three different types of in analyzing these laws from the bodily integrity would cease because there entity with is moral status no to longer possess that any particular does right. not This mean that the law enforcement would only serve the function of giving confidence could not still be enforced, to other living individuals but that their own wishes will be carried out. There would be no legal obligation integrity. bodily posthumous to right a of basis could belong to dead “individuals” themselves: in other words, people’s right to posthumous bodily integrity could survive 2013] 2013] their bodies after their death, the law creates rights-holders relation in to those bodies. tautologous – but This a may question holder seem arises of how obvious this to – legal characterize right. conceiving even the of these There rights-holders. are First, they at individuals whose are bodies will least become the corpses two at issue. ways At of the moment of death, that person’s legal right to posthumous P M K C Y 33718-mqe_14-2 Sheet No. 34 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 34 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 34 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. RTICLE A HIS HIS T ) 6/17/2013 1:02 PM ELETE D OT N O IRECTION OF OF IRECTION D MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y URPOSE AND Part Part III examines the moral implications for an interest in The article is structured as follows. Part II introduces the The article’s approach is largely positive rather than P UBLISHED that happen after their deaths, as well as the basis on which the rights. legal as having of conceived can be dead posthumous bodily integrity when the interest belongs dead to the or only to difference the the identity of living. the interest-bearer individual’s makes prior wishes when Specifically, were express, the inferable, it or unknown. considers For example, the if only the living have a right to posthumous ways in which someone could have an interest in the treatment of her corpse. As noted above, interests can be conceived of as on terminating an death or individual’s 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 individuals’ individuals’ wishes regarding their corpses should legal matter. a or moral always as a either – respected be D. capable capable of being rights-bearers, the article’s primary goal is not to defend that position but rather to explore the of consequences whether they are, or not. In addition, this is not an article about in rights or interests the of bodies balancing competing the dead. It is not concerned, should for be allowed example, to with decline to whether be displays of organ individuals plastinated donors corpses or should be whether banned on the that basis they are undignified. Although the interest in, right and to, posthumous legal bodily integrity are central to this article, this should in no way be interpreted as suggesting that 204 holders versus only the living (or elucidate vice versa), whose this interests may help lawmakers Third, are if one has a view trying about whether the dead to are capable of protect. having rights, this will have implications for laws how one thinks protecting structured. posthumous bodily integrity should normative. be Although it is my own view that the dead are not P 33718-mqe_14-2 Sheet No. 34 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 34 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 35 Side A 07/02/2013 13:56:24 205 ) 6/17/2013 1:02 PM ERMINOLOGY ELETE T D OT N O NTERESTS I POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y OSTHUMOUS Part Part IV examines specific laws that grant a right to To set the stage for an analysis of a legal right to NTRODUCTION AND P I UBLISHED A. legislation legislation that reflects my own view that the dead cannot have rights. If, however, the dead can have a bodily right integrity, to laws posthumous permitting the display of ancient corpses to justify. harder are II. research research using cadavers, posthumous reproduction, the ability to the refuse an autopsy, and requirement the of consent ability demonstrating for that to these laws grant choose bodily integrity, a the analysis right in Part burial to IV reveals posthumous that who it holds matters the versus rights. Specifically, the cremation. competing interests weight often should depend in to part on whether the be given After to dead have an interest in posthumous bodily integrity. This not a is question that appears to have been considered in drafting or enacting legislation, and I suggest a change to anatomical gift 2013] 2013] bodily integrity, and enforcement after death simply serves to their that to wishes give own individuals living other confidence will be carried out, it is easier to justify a policy that treats corpses the of those whose wishes are unknowable differently than were known. wishes prior whose people deceased of those posthumous bodily integrity. In particular, it discusses laws in relation to posthumous organ donation, medical education and P basis there can be rights in There relation is to no dead question that people’s the bodies. general public and members living can family have legal rights in relation because to they others’ cadavers are living people with treatment ongoing of interests those in cadavers. the interests (Assume ground rights, for which will be the addressed below.) moment that 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 posthumous posthumous bodily integrity, it is important to on consider what M K C Y 33718-mqe_14-2 Sheet No. 35 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 35 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 35 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y In addition, it is worth noting that the fact that corpses are It is important to be clear that the relevant question is not That said, there are two ways in which such postmortem UBLISHED research research on a corpse based on the will. provisions Rather, at of issue is a the nature of deceased’s legally-protected interests corpse. one’s of treatment in the legally protected does not mean that corpses have legal any rights more than the protected means that fact those buildings have legal that rights. Whose heritage buildings are legally any rights of the dead themselves. wishes However, of respecting the the confidence to the living that their own dead wishes will be carried out may be (or desirable for insofar other as as a whole). society or family surviving reasons it related gives to fulfilling the interests one of of legal standing or enforcement of the law – the dead have no legal standing – deceased’s estate, could but conceivably seek another to enforce a legal right posthumous bodily to integrity. entity, For example, such one could imagine as the estate of a deceased the person suing to prevent certain medical interests can be justified: first, living people are said to have an interest in certain events that occur after their they deaths may because be part of a person’s some overall construe the life dead plan; themselves and as second, having a limited ongoing set of interests. While uncontroversial, the the second is first not. justification Some have is deny that relatively the sufficient dead moral posthumous status bodily integrity to and, viewed as possess having that therefore, right. From this a view should it follows that the not legal previous wishes be of right the dead can to be ignored without violating 206 never coexist, such that it is not obvious why interest in the of treatment her corpse a – either before or her after person has an death. The argument might go that I should not have a present interest in what happens after my death because I around will to be affected by those events, not and after I am be dead I will have not interest in anything because an there will be not “me” a at all. interests to have P 33718-mqe_14-2 Sheet No. 35 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 35 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 36 Side A 07/02/2013 13:56:24 , 15 , 14 (Fall (Fall Kirsten Kirsten Kramer See See also HILOSOPHY P 207 . 763, 769–72 (2009). (2009). 769–72 . 763, IGHTS R EV NCYCLOPEDIA OF L. R E OFSTRA OFSTRA H TANFORD TANFORD ) 6/17/2013 1:02 PM S PPROACH TO TO PPROACH , 37 HE ELETE A D Do Do Animals and Dead People Have Legal Rights? , T OT N O ASED Rights The fact that corpses are legally protected is -B 13 Hart’s Will Theory, for example, requires that that requires example, for Theory, Will Hart’s 14 Rightsof the Dead .29,39 (2001). (2001). .29,39 POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D URIS Leif Wenar, OUNG NTERESTS I of being rights-holders. Rather, it focuses on the the on focuses it Rather, rights-holders. being of See .Y N The question addressed below is what implications flow What is important to note is that some of these theories are Rights are notoriously difficult to define and are note 13, at 29. 29. at 13, note .J.L.&J A AN UBLISHED 2011 2011 ed.), (last http://plato.stanford.edu/archives/fall2011/entries/rights/ reviewed Jul. 2, 2011) a (outlining discussion general of Hart’s Will Theory). supra rights-holders rights-holders have the ability to make reasoned decisions, 14. Kirsten Smolensky makes the same point in her own work. work. own her in point same the makes Smolensky Kirsten 14. Rabe Smolensky, Again, Again, the article is not controversial primarily attempting philosophical to answer question the capable whether the dead approaches. both given law the for implications are B. therefore not determinative of whether only the living are rights- living the are only whether of determinative not therefore holders. from the view that the law versus treats the view the that it dead only as treats the rights-holders living as rights-holders. which would obviously be problematic for the as rule out would also potentially and rights-bearers be dead can claim that the rights-holders some of the living, such as those in a persistent vegetative state. Other theories, however, view non-humans, 13. Matthew H. Kramer, Kramer, H. Matthew 13. 2013] 2013] rights a law protects is a question of who is than its its subject object; rather “for whom” the law is enacted regard rather to” than what. “in P C 15. 15. discussed at length in detail. any in theories interests-based address only will article the jurisprudence literature and this less easily reconciled with the view that the dead are capable of having rights. conceptualized conceptualized differently by different scholars. approaches, The various including Hohfeld’s, known Hart’s as Will Choice Theory Theory), (also and interest-based theories are M K C Y 33718-mqe_14-2 Sheet No. 36 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 36 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 36 Side B 07/02/2013 13:56:24 M K C Y ? the the 19 THICAL THICAL E TANDING Thus, Thus, S 16 AVE H [Vol. 14 14 [Vol. REES REES EGAL AND 11, 11(2006). T :L OMPASS OMPASS HOULD .C ,S NTERESTS I HIL TONE , 1 P D. S ) 6/17/2013 1:02 PM Thus, “legal rules conferring rights rights conferring rules “legal Thus, 17 ELETE OSTHUMOUS OSTHUMOUS D Rights Theory OT ,P HRISTOPHER N C O PERLING MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE S .MACROS (D Interest theories have been promoted by scholars scholars by promoted been have theories Interest 71 (2008). (2008). 71 18 OUNG ANIEL ANIEL .Y D See, e.g., generally “Interests” “Interests” refer to those moral claims of an entity, Just as there is no agreement as to the best approach to ERSPECTIVES UBLISHED violation violation of which is a moral Some wrong, interests all are more things deserving being of, equal. and legal protection, than may others. There receive should be overlap more between interests and legal protections injure (for a example, person both to violates deliberately that integrity and is person’s contrary to the interest law), but in the overlap will bodily never be absolute for several reasons, including the fact that interests are neither universally agreed upon interests nor static. often conflict, In such addition, that everyone’s it interests is impossible simultaneously. to lawmaking. in therefore important Balancing respect interests is such as Bentham, Raz, Feinberg, and Kramer. Kramer. and Feinberg, Raz, such as Bentham, promote the right-holder’s well-being represented by her legal interests.” 19. For now, I deliberately avoid suggesting that only persons may hold hold may persons only that suggesting avoid deliberately I now, For 19. interests, since the subject of holders. this inquiry is whether the dead can be interest- 16. 16. P 208 animals, and even trees as potential rights-bearers. P 17. George W. Rainbolt, Rainbolt, W. George (1996). 17. rights, rights, even within an interests-based agreement as approach to the there precise role of is interests in relation no to legal rights. What interest theories of rights have in common is the view that an entity has a protect one of its right interests. when others have a duty to depending depending on one’s view of the nature and scope may, or of may rights, not, be it possible for the dead to have them. Since the aim of this article position is as not to primarily whether to examine take the what it a dead might mean normative if have they do rights approach to rights that or is compatible with the dead being rights- but do not, rather I take to an approach. interests-based an namely bearers, 18. 18. 33718-mqe_14-2 Sheet No. 36 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 36 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 37 Side A 07/02/2013 13:56:24 , ] 21 IGHTS OUNDS B R in , For him, 20 Feinberg Feinberg Rights 209 AND THE THE AND , As a result, result, a As 22 USTICE ,J 0) [hereinafter IGHTS ]. ]. R in , 165, 167 (198 ) 6/17/2013 1:02 PM Feinberg Harm ELETE IBERTY IBERTY D Unlike Feinberg’s approach, Kramer’s Kramer’s approach, Feinberg’s Unlike L note20, at 168. 24 OT N O The Rights of Animals and Unborn Generations Harm and Self-Interest note 13, at 33. 33. at 13, note Feinberg takes moral status into consideration OUNDS OUNDS OF 25 B POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS 23 , supra .MACROS (D 45, [hereinafter (1980) 45 at 46. 46. at OUNG Kramer .Y AND THE THE AND , According to Kramer, possessing interests is a necessary but interests but is a to necessary possessing According Kramer, However, However, the difference between Feinberg and Kramer’s Matthew Matthew Kramer’s approach is broader. According to him, Consider Consider two different interests-based approaches to rights. . . Id. . supra Rights, Feinberg . Id. IBERTY IBERTY 24 22 23 25 L UBLISHED USTICE interest-holders interest-holders are capable of subset being of Kramer’s interest-holders rights is capable of holders, having rights. only Thus, even though many a more entities count as interest-holders in Kramer’s approach than in not rights-holders. are interest-holders Feinberg’s, many of Kramer’s insufficient condition for an entity to have the status considered, of be must entity a the of status moral legal The rights-holder. and Kramer evaluates the moral status of entities in comparison to entities with paradigmatic moral status – namely competent adult humans. does not require cognitive equipment. that Therefore, interest-holders interests. have can buildings, inanimate objects, have such as rudimentary approaches is less than it appears, because whereas Feinberg’s 21. Joel Feinberg, Feinberg, Joel interests principle). the (outlining 21. 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 deterioration therein.” improve X’s condition or will avert a to have an interest means to have a stake in something. Interests Interests are related to, but narrower than, wants and desires, in that only deep-rooted wants can be interests. J having having an interest presupposes having “rudimentary cognitive equipment.” 20. Joel Feinberg, 2013] 2013] Joel Feinberg’s theory is that in order to be legal capable rights one of must be having capable of having interests. P OF OF M K C Y 33718-mqe_14-2 Sheet No. 37 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 37 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 37 Side B 07/02/2013 13:56:24 M K C Y 29 moral status status moral [Vol. 14 14 [Vol. much The grass does not not does grass The 27 ) 6/17/2013 1:02 PM ELETE D note 20, at 167. 167. at 20, note OT N O supra , According to him, the lawn and perhaps each each perhaps and lawn the him, to According MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE 26 .MACROS (D Feinberg’s approach to the same example would would example same the to approach Feinberg’s at 36. 36. at OUNG 28 Id. Id. Feinberg Rights .Y Kramer Kramer provides the example of a law that forbids walking Kramer’s Kramer’s approach can be criticized for taking too broad a Neither of these interests-based approaches to rights . Id. 27 UBLISHED 26. 26. 28. 29. 210 in determining who interest-holders is to be an potential interests-holder, rights-holders, considers moral status only after status as an interest-holder while has and Kramer considers established. been on the grass. P for whose benefit the law is maintained. blade blade of grass have interests, but they do not have legal rights. is the public law of this therights in context of holder theRather, have have legal rights because it is too According dissimilar to to living Kramer, people. a rights-holder benefit a law is is enacted and it does not make sense someone to think that for whose a law forbidding walking on the grass is enacted for the grass’ benefit. someone and only those with interests can have such claims. such have can with interests those only and someone 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. approach grants Such an some kind of tangible thing, moral although not necessarily status very to almost every presumably be that grass does whether even in or it is trampled not whether in a stake have doesn’t have interests, because it it lives or dies, and According therefore to the him, grass legal cannot rights have are rights. a kind of claim against something) is a rights-holder. rights-holder. is a something) requires the ability to enforce those rights oneself. Nor does the and not necessarily the capacity to bear other legal hand, rights. Kramer may On not the intend for interests inherent moral to significance: have the any question of moral significance may only arise at the stage of determining whether someone (or 33718-mqe_14-2 Sheet No. 37 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 37 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 38 Side A 07/02/2013 13:56:24 , tate BORTION A He draws draws He HEIR HEIR 30 T 211 RGUMENT ABOUT A N REATMENT OF OF REATMENT Decisions about our living living our about Decisions T :A 32 201–02 (1993). (1993). 201–02 OMINION ) 6/17/2013 1:02 PM D S ’ ELETE REEDOM D F IFE The ability to shape our lives according IVING IN THE IN THE IVING OT 31 L ,L N O WORKIN NDIVIDUAL I D POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D AND AND , at 224. 224. at at 201. at 201. OUNG ONALD .Y Id. To summarize, according to interest theories of rights, Given Given an interests-based approach to rights, living . Id. NTERESTS OF THE THE OF NTERESTS I 32 ORPSE UTHANASIA UBLISHED what makes life good. a distinction s and experience to relate that those are interests experiential between critical of and mind, while critical interests reflect critical experiential judgments about interests: 31. 31. E 30. R 30. C have have interests), but dead. the of to treatment dignified protect the public’s interest in the having interests is the basis for having having legal interests rights may (although not be a sufficient legal condition rights) for having and competent human rights-holders. The adults latter is are presumably true paradigmatic of all theories rights, of but it is an important aspect of interests. from rights creating Kramer’s approach to C. 2013] 2013] nature of what is protected dictate who the rights-holder law is: a can protect something without that as rights-holder, is the case with lawns and something buildings in heritage being the the examples above. Note also that capable just of because having an legal entity rights does is not mean relation to that it necessarily protect all its own interests. laws For in example, we can proscribe indignities to a corpse not only to protect the deceased’s own interests (assuming for the moment that it can P bodies may reflect experiential interests (for example, the desire to our critical and experiential interests, according to Dworkin, is central to the value of autonomy. individuals individuals can have an interest in what happens to their bodies after they die, even though those people will no longer exist at become will what in the living of The time. interests the relevant interests. their are calls critical corpse what Dworkin M K C Y 33718-mqe_14-2 Sheet No. 38 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 38 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 38 Side B 07/02/2013 13:56:24 M K C Y J. , 24 THICS THICS E HE These These 36 :T THERS [Vol. 14 14 [Vol. O events. Thus, “[w]hat “[w]hat Thus, 34 146 (2000). ECIDING FOR THICS THICS They conclude that such such that conclude They E 33 ,D post-mortem ROCK W. B ) 6/17/2013 1:02 PM AN 164 (1989). (1989). 164 ELETE D RANSPLANTATION &D interest in in interest OT ,T N AKING Individual Individual and Family Decisions About Organ Donation O M present EATCH UCHANAN MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ECISION M. V E. B D .MACROS (D . 26, 31 (2007). at 163. at 163. LLEN OUNG HIL OBERT OBERT P .Y Id. Id. R 35 For example, Donald can have a critical interest in ensuring The existence of critical interests in relation to post-mortem URROGATE S PPLIED UBLISHED 35. T. M. Wilkinson, Wilkinson, M. T. 35. surviving surviving family, potential organ recipients and their families, and society at large (which has a stake in promoting health and post-mortem events can include the treatment of our bodies after bodies after our of treatment include the can events post-mortem death. However, the fact that we have a moral claim does not mean that that claim must always respected be or that it be must legally protected. One’s interest in autonomy is When not absolute. it comes to organ donation, for with example, other an entities interest in the treatment of a corpse include the OF OF A 33. A 33. preserving preserving the Philosophical theorists Allen Buchanan and Dan Brock draw a environment distinction, similar to Dworkin’s, between experiential interests for and “surviving interests,” which future are essentially interests that relate those to future events. critical generations. 212 to avoid pain) or critical interests having (a religious a interest death since in events, post-death to not relation in medical interests experiential procedure). and The experience are living mutually exclusive. can events. to such relation in interests critical have However, have they may no that his family is financially secure during his lifetime but also after he is dead. He may also have a critical interest in P interests may relate to post-death events. 36. 36. events means not only that people care what happens after they they after care happens what that not people only means events die, but also that they have a moral claim to determining what happens after they die. Since autonomy – our critical interest in making decisions interests about ourselves – implicate our we can have a happens happens after death can (depending on the particular person’s own idea of self-development) complete the development of the self.” 34. 34. 33718-mqe_14-2 Sheet No. 38 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 38 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 39 Side A 07/02/2013 13:56:24 . 33 TUD .S HIL 213 , 123 P to actually carry out an an out carry actually to We Make No Promises ) 6/17/2013 1:02 PM there may be reasons for respecting ELETE 37 D OT It is a wrong, but not a wrong to the the to wrong a not but wrong, a is It N 38 O to the deceased POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y Notwithstanding Notwithstanding the inability to harm a person’s critical Living individuals canLiving individuals have critical therefore interests in the Second, Second, if an individual’s post-mortem wishes are not UBLISHED interests interests after her death, individual’s individual’s wishes after her death. person had in the treatment of her corpse could only be fulfilled Rather, any interest or violated during her life: aindividuals’ moral claims in relation death. expire at would bodies their to 37. Those who take the view that the dead have interests may object to the the to object may interests have dead the that view Mason, the take Elinor who Those generally 37. See assertion that a person’s critical interests possibility will cannot be discussed in be the following parts. harmed For after now, the assertion death. can read be as This meaning that a living exists.no longer death becauseperson living the the deadWhether person assumes person’s critical interests cannot be question. an open now, harmedfor interests is, those after 38. assuming assuming for the moment that the individual could have in her own corpse is the critical interest of only potential interest an the living individual in her future cadaver, that interest would end with the death. individual’s It would follow that there is no moral obligation 2013] 2013] costs). healthcare in minimizing treatment of their corpses. These rights. interests can What is ground less legal clear death, such that the dead can themselves be construed is as having whether those interests survive 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 P deceased. deceased. (For promise versus a individualan breaking of the morality between present purposes I promise.) a ignore breaking a state any distinction (2005), (2005), for a discussion of the morality of breaking promises, promises. including deathbed the prior wishes of interests. the dead If even people’s wishes if are death, two only things not follow. actually the First, if a respected person living or after the state have assures break to way particular a be in will body treated her that another that promise is immoral, even though it is not a violation of the deceased’s interests. M K C Y 33718-mqe_14-2 Sheet No. 39 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 39 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 39 Side B 07/02/2013 13:56:24 M K , C Y NIVERSITY U (“Harm” (“Harm” 39 [Vol. 14 14 [Vol. LARA C ANTA REATMENT OF THEIR THEIR OF REATMENT T , S ) 6/17/2013 1:02 PM ELETE D EAD IN THE EAD IN Ethics and Personhood: Some Issues in Contemporary OT D N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D David L. Perry, Perry, L. David OUNG See .Y A living person’s legal right to posthumous bodily integrity The experience problem is essentially that because the dead The argument above that the living have critical interests in NTERESTS OF THE THE OF NTERESTS I ORPSE UBLISHED is used here to to mean set back or not fulfill interests; one’s and, the fact that different theorists have what counts different as conceptions an interest of should not affect the analysis.) In 39. 39. can therefore be grounded in a critical interest, while alive, in the the in alive, while interest, critical in a grounded be can therefore because We her care corpses corpse. treatment our they of about are closely linked to our living bodies, which are central to our alive. while autonomy to our and of ourselves concepts D. C 214 systematically respected, living individuals reason to will doubt that their have own wishes good will their be death. respected after Their critical be cannot corpses therefore theliving Thus, claim satisfied. that interests in the treatment of individuals their have an interest in what happens to but rests survive rather not interests on death, the benefit that on their corpses to them of knowing, while they are alive, that their wishes will berespected. P Neurological Science and Technology http://www.scu.edu/ethics/publications/submitted/Perry/personhood.html http://www.scu.edu/ethics/publications/submitted/Perry/personhood.html visited May 23, 2013). (last Perry’s problem. lecture, experience discusses the found on the Santa Clara webpage, also 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 raises two that problems, the known as dead the have “experience problem” interests and subject.” of the the “problem have no self-awareness or ability to experience anything, they cannot be harmed, they cannot have a stake their interests while in alive can no longer be thwarted. anything, and the treatment of their future corpse is relatively uncontroversial. 33718-mqe_14-2 Sheet No. 39 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 39 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 40 Side A 07/02/2013 13:56:24 THICS (1996). (1996). note 40, at at 40, note , 91 E THICS E , supra 215 UMNER S See APPINESS AND ,H ELFARE ,W at 113–37. ) 6/17/2013 1:02 PM note 21, at 61, 63. 63. at 61, 21, note ELETE supra See id. D UMNER , OT N Posthumous Interests and Posthumous Respect O L. W. S POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS Feinberg Harm On such an approach, Donald is harmed if he has , .MACROS (D 43 41 whether or not those interests have been thwarted (in (in thwarted been have interests those not or whether OUNG Others are willing to concede an objective approach to to approach objective an concede to willing are Others 42 See,e.g. See generally .Y 40 Some scholars, however, consider harm to be at least Thus, on a subjective approach, it is difficult to conceive of UBLISHED 43. 45–80. 43. 42. And even that is controversial. Some maintain that what is good for us can can us for good is what that maintain Some controversial. is that even And (1981). 247 243, 42. be at least partially determined on an objective basis. 41. Ernest Partridge, Partridge, Ernest Sumner’s account is one of welfare rather than harm, but since interests are defined in terms of and welfare harm defined is in terms of interests, poses this no problem. Sumner is view that we of arethe not harmed when our desires are unless thwarted fact. of awarenesswe the have 41. 40. 40. 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. 2013] 2013] essence, the argument is that the dead no longer have interests a this assumes However, harmed. beto inability their of because subjective approach to harm assumes that that awareness is by the itself subject of controversial. harm condition is for harm: a one is only necessary harmed if It 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 children Donald’s are all poor for P other other words, whether one has been harmed) can be determined objectively. interests even if they do not ultimately believe the dead can have have the can dead believe not ultimately they do if even interests interests. prospect prospect for the violation of an interest, there would seem to be no foundation for a legal right to have rights. of theory interest-based an within that interest protected partially objective. Although one’s interests, subjectively determined (by themselves, virtue are of what specific individuals value), the dead as having posthumous legal interest requires rights. the harm to If be experienced, and harm the dead to are incapable of an experiencing anything, it follows that the dead are incapable of having their interests harmed. If there is no M K C Y 33718-mqe_14-2 Sheet No. 40 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 40 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 40 Side B 07/02/2013 13:56:24 M K C Y 47 [Vol. 14 14 [Vol. He claims that that claims He 44 interests have been been have interests whose This is, essentially, to reject the the reject to essentially, is, This ) 6/17/2013 1:02 PM 46 45 ELETE D OT N O harmed. MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE feels .MACROS (D at 64. 64. at at 63. 63. at 61. at 65–68. at OUNG Id. Id. .Y Whereas Whereas the subjective approach to the experience problem The second and more difficult problem for any theory in Feinberg’s Feinberg’s approach to harm is objective. . Id. . Id. 45 47 UBLISHED thwarted. 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 him, Feinberg is but to say later that rejectedwhat is harmed by is the interest itself, not person the whose interest it is. the deceased person no longer thwarted, exists, we and can her reasonably interests ask are made it difficult to conceive of the interests dead having and posthumous therefore posthumous clearly possible rights, on an such objective approach: rights need by for eliminating harm are to the be experienced you eliminate problem. the experience Feinberg concludes that objective. are they because part, death, in our interests can survive which the dead have interests is the problem of the subject. If need for a subject at all. The interest can continue to exist when the person no longer does: “[w]hen death thwarts an the interest is harmed, interest, and the harm can be ascribed to the man who is no more, just as his debts can be charged to his estate.” whether she she whether we are harmed when our interests are whether thwarted, regardless we of are aware of considers the libeled harm. people to be For harmed example, even made if Feinberg aware of they the harm are to their never reputations. An individual is harmed if she is the owner of a harmed interest regardless of Thus, the dead can have rights by virtue of the fact that interests exist independent of that of the person are/were. whose interests they Further, those interests can ground rights of the 44. 44. 46. 216 well-being,an financial andinterest in his his children’s children poor. are they knows Donald whether of regardless are poor, P 33718-mqe_14-2 Sheet No. 40 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 40 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 41 Side A 07/02/2013 13:56:24 .Q. 183, 184 184 183, .Q. HIL 217 .P M The dead can be be can dead The 341, 345–46 (1987). For For (1987). 345–46 341, 48 , 21 A THICS 51 , 97 E 91 (1984). (1984). 91 49 . 321 (2007). (2007). 321 . ) 6/17/2013 1:02 PM HIL THERS O can be harmed by the fact that their ELETE &P D The Misfortunes of the Dead OT Part II.B. II.B. Part N On Harming the Dead living O ARM TO supra ,H EALTHCARE POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS ., H .MACROS (D EINBERG ED F George George Pitcher, discussion discussion Joan Callaghan views this approach as simply OUNG OEL OEL 50 Feinberg did so by relying on ante-mortem people who who people ante-mortem on relying by so did Feinberg See Id. .Y See , 10 M , 10 52 Another Another approach to the problem of the subject is that of Feinberg Feinberg later rejected this view, however, in favor of the Scholars have criticized theories of posthumous interests Queen Christina’s Moral Claim on the Living: Justification of a Tenacious Moral UBLISHED harmed harmed if those desires distinguishes between are the thwarted post-mortem dead after – the death. that mere cannot dust be harmed – Pitcher and the were. they that mortem persons dead as reflecting the ante- bolstering bolstering the argument that the dead According can have to no her, interests. what Feinberg arguing and is that Pitcher the are essentially death. after fulfilled be not will wishes Kramer. 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 issue. to address that 48. 48. 2013] 2013] deceased because of the connection between the interest and the was. that person ante-mortem person approach, which Pitcher’s view is of posthumous similar interests. to On person the view, George ante-mortem the dead retain an relate interest to the in important those desires that things were that held by before those they people died – the ante-mortem people. P 51. Joan C. Callahan, Callahan, C. Joan 51. 50. J (1984). 49. 50. 52. 52. more arguments against the dead having interests, see generally Malin Masterton et et Masterton Malin see generally interests, having dead the against more arguments al., Intuition occur means that all along the individual was playing a “losing game.” based 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 posthumous and interests Pitcher’s relies on approach the to posthumous been a harm harm all having along – the fact that the harm will eventually M K C Y 33718-mqe_14-2 Sheet No. 41 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 41 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 41 Side B 07/02/2013 13:56:24 M K C Y Do Do to the the to identical [Vol. 14 14 [Vol. In his article 54 , Kramer concludes that that concludes , Kramer ) 6/17/2013 1:02 PM ELETE D OT Part II.B. II.B. Part N O supra note 13, at 32, 35. 35. 32, at 13, note Rather, subjects must merely have the capacity capacity the have merely must subjects Rather, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE 53 supra If ways deadthe which wethe consider in continue .MACROS (D 55 discussion discussion at 47. 47. at OUNG See Kramer, .Y However, However, having interests isn’t sufficient to ground rights The nature of the subject of posthumous interests has . . Id. 54 55 UBLISHED 53. 53. 218 had cognitive capacity. Kramer’s approach, on the other hand, does not require subjects to have cognitive capacity in order to have interests. P rights 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. to be buildings view his On interests. have to affected effect) the of experience (without necessarily dead. the can so, clearly, and interests have can andgrass having awareness or on Kramer’s view, so whether the dead can have posthumous of the living individuals they used to be. However, no theory holds that a deceased’s posthumous interests are interests the held living while person alive. For example, no one contests that experiential interests, such as the interest in sufficiently sufficiently analogous to competent adult humans and capable of having rights. On continued have the as dead insofar only but dead, interests the is this view, the subject living people. of lives the in existence of posthumous significant implications for the seems interests resulting and to follow the that rights. thing One scope and nature that is interests posthumous of the subject to approaches all from of those those interests are a subset of the interests person before held her by death. the I living am aware of no interests based than to thethe on factors interests other deceased theory that grants to influence the living – through for example memories, persistence – in we people’s can conceive their possessions and their of them as still having an existence, and therefore as being Animals and Dead and Have Dead Animals People Legal Rights 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”. 33718-mqe_14-2 Sheet No. 41 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 41 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 42 Side A 07/02/2013 13:56:24 57 56 If this is is this If 59 219 note 13, at 47). at 47). 13, note ) 6/17/2013 1:02 PM supra ELETE D OT note 21, at 64. 64. at 21, note N O note 14, at 772. 772. at 14, note supra , supra As a result, a secret desire reflects an interest that that interest an reflects desire secret a result, a As POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS 58 .MACROS (D at 790 (citing Kramer, Kramer, (citing 790 at OUNG .Y Id. Although theories Although of theories posthumous interests have in common Smolensky’s Smolensky’s requirement that the living know about an Kirsten Kirsten Smolensky, on the other hand, who takes Kramer’s . Harm Feinberg . Id. 56 58 UBLISHED According According to Smolensky, whether an depends interest on whether survives there is death a record of the desire underlying the interest. interest is still capable of being fulfilled or thwarted, it persists. or thwarted, fulfilled being of capable is still interest 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 recollection of that interests person. Thus, there is no reason to think to that people’s one’s interests had to have been communicated before death in order for the relevant posthumous interests to exist than any an incompetent patient’s desires more before incompetence have to be expressed in order for the patient to retain an treatment interest in that reflects those wishes. Rather, as long as the 2013] 2013] extinguished by death. are pain, avoiding the fact that posthumous interests are a living subset person’s of the interests, former the varies. Consider, scope for example, whether a particular interest of a of posthumous interests living person needs to be communicated to others in order for it person ante-mortem the On interest. posthumous a as survive to approach advocated by Pitcher and Feinberg, there is no reason P extent that they live on live of they in that the living. the memories extent dies with the person who held it. held it. who person the dies with interest of the deceased for it to survive follows from Kramer’s view that the dead continue to be rights-bearers only to the so, so, then an individual’s survive desires death to become unknown posthumous interests. to It others would also cannot approach approach to posthumous interests, limits posthumous interests to those that the expressed deceased to others before her death. 57. Smolensky, 57. 59. 59. M K C Y 33718-mqe_14-2 Sheet No. 42 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 42 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 42 Side B 07/02/2013 13:56:24 M K C Y EAD D [Vol. 14 14 [Vol. NTEREST IN NTEREST IN I ELONGS TO THETO ELONGS B HETHER AN W ) 6/17/2013 1:02 PM NTEGRITY I ELETE D IVING OT L N ODILY O B MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE MPLICATIONS OF MPLICATIONS I .MACROS (D NLY TO THE THE TO NLY OUNG O .Y ORAL OSTHUMOUS Having Having examined the problem of experience and the Whether Whether posthumous interests exist only in relation to M P OR UBLISHED 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 which three a scenarios claim in to posthumous bodily integrity could arise: a) an an important feature of death is that harm it or precludes benefit any to further the deceased. However, convince the reader my of the correctness of my view: aim the debate on is not to whether the dead can have interests that ground rights has been discussed for decades in the arguments to add in defense of my view that they cannot. What literature and I make is important no for present purposes new is to recognize that there are multiple approaches to whether, and rights-bearers. as of conceived how, the dead can be III. apparent below, the issue has implications for whether, under existing law, we should presume unknown. are person living the wishes of where the consent to organ donation 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 ofsubject of debate. My own view is that harm is subjective and in those rights is the any event one must have the capacity to altered) be in order to be affected the proper (not subject of rights. just In my view, 220 follow that those who acquaintances, or celebrity would have had no posthumous interests no friends, family, and that those possessions, who were more guarded and private may have so. less were who those than interests posthumous fewer expressed desires will have implications for whether the dead can have an interest in certain treatment of their corpse absence of in expressed wishes. For example, the as will become more P 33718-mqe_14-2 Sheet No. 42 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 42 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 43 Side A 07/02/2013 13:56:24 221 XPRESSED E ) 6/17/2013 1:02 PM ELETE D OT Parts II.B. & D. D. & II.B. Parts N O XPLICITLY XPLICITLY but this section assumes that Sara’s wishes wishes Sara’s that assumes section this but On Kramer’s account, they do need to be be to need do they account, Kramer’s On E supra 61 60 POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS ISHES ISHES .MACROS (D W discussion discussion OUNG See See id. .Y RIOR RIOR Assume an individual, Sara, made it known that she wished Assume an Sara, she individual, it wished that made known If, however, Sara’s interests cease to exist when she dies, P UBLISHED order order to survive. these were her sincere wishes and that Sara is a competent adult. these wereSara her that is a and wishes adult. competent sincere Regardless of whether Sara’s critical interests in organ donor not and in being cremated survive her death, the moral being an but reasons the wishes, those to respect to be do thing to appears for this differ considerably depending on whose interests are at stake. If these interests of Sara’s survive death, then abide to by fail them to is to harm the deceased Sara’s critical To interests. be more precise, those critical Feinberg interests and survive Kramer-style on approach both to a posthumous interests. On Feinberg’s account, interests need not be known to others in to be cremated and not to be an organ donor. Assume also that have, in fact, been explicitly communicated. communicated. explicitly been fact, in have, any morality-based reasons for respecting Sara’s wishes depend 60. 60. 61. examined examined in the next Part. The analysis reveals that the moral basis for a depending on whether the underlying interests are construed as right to surviving bodily death or integrity not. varies approaches suggest And considerably in different some bodies. dead to relation morally-acceptable cases, conduct the in different A. 2013] 2013] where an individual’s expressed wishes before her regarding death; b) her expressed where but can her corpse be wishes inferred; were were and c) neither not where expressed her nor wishes inferable. are For the assumes moment the a analysis generic although this should be viewed right as a placeholder for the sum of to legally-granted posthumous rights bodily to make integrity, treatment of one’s specific dead body. decisions These specific about interests will be the P known known to others, M K C Y 33718-mqe_14-2 Sheet No. 43 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 43 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 43 Side B 07/02/2013 13:56:24 M K C Y 62 63 [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM note 38 (discussing four philosophical views on on views philosophical four (discussing 38 note ELETE D supra OT N O Mason, Mason, MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG See generally .Y There is another perspective from which it may be immoral If Sara’s wishes were not expressed in a legally binding If Sara’s wishes were expressed in a legally binding manner, manner, expressed binding a legally were in wishes If Sara’s UBLISHED it is not necessary for Sara to still have interests in be immoral. to her order to promise broken for a 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 during interests life if the can person believes her wishes only will be respected. be fulfilled 62. 62. 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, no positiveright to be an organ donor – the never promises state that one’s consent will result in donation – but there is donor. an organ not to be a right manner but were explicit, nevertheless the family surviving may have explicitly or implicitly promised ensure her Sara wishes would be that carried out. they If so, and would 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 222 on the existence of promises or the knowledge of others that her respected. not were wishes the state has given Sara reason to believe that her wishes will be respected. This amounts to a although kind equating of laws promise with by the to the caveat subject also is promises The state of idea simplistic. state state, promises is perhaps that some laws too grant only negative rights. For example, there is P 63. The issue is somewhat more complicated in that it depends whether one one whether depends it that in complicated more somewhat is issue The promising). of act and implications the 63. takes a subjective or objective approach to interests. On Feinberg’s view, whether or is one’s thwarted irrelevantinterest is fulfilled that one to thinks whether interest is actually fulfilled. To avoid this living problem, have it not only is an interest sufficient in the to treatment of recognize their corpse, that but believing their an the corpse will interest be treated in in a certain way. People can, certainly, suffer from the belief that their posthumous wishes will not be respected, even if they 33718-mqe_14-2 Sheet No. 43 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 43 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 44 Side A 07/02/2013 13:56:24 223 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y That said, there might be a broader dignitary interest in There There is, therefore, an interesting distinction between the UBLISHED not to respect the express promises wishes and of the public’s the knowledge, dead, if society regardless is acts of harmedof refusing to by honor the wishes of the dead. However, the reasons why society would be harmed by such acts depend on why society it thinks to important respect the wishes of the dead are. ultimately explicitly explicitly or implicitly promise their mother they would carry out her wishes, and no one else knows what Sara wanted, there wishes. Sara’s fulfill to obligation moral no be may carrying out the wishes of the dignitary harm to dead. society as a whole in not respecting That the prior is, there wishes of the dead evenif the of fact not those respecting wishes may be 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 respect the certain wishes of the light dead. Thus, – it may as be morally wrong people who following following her wishes does not harm her. The failure to abide by her wishes can only constitute harm insofar as it broken amounts promise or causes other living to people to doubt that a their own wishes will be respected. One implication of this is that if no one knows Sara’s interests terminate wishes at death, were it may not be not morally respected, to unproblematic respect and her express wishes her unless a promise to broken. Thus, her if Sara mentioned to her children that she was did not want to be an organ wishes donor, in but a she never legally expressed binding those manner, her children did not 2013] 2013] Thus, by ignoring systematically people’s wishes regarding their corpses, the living will have no comfort that their own wishes respected. be will living and the dead as following interest-holders Sara’s in prior this wishes regarding respect. a critical interest posthumous Not harms the dead Sara if, indeed, the dead Sara can have interests. However, if the dead Sara has no interests, not P M K C Y 33718-mqe_14-2 Sheet No. 44 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 44 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 44 Side B 07/02/2013 13:56:24 M K C Y ERHAPS P [Vol. 14 14 [Vol. have have to be public not not XPRESSED BUT BUT XPRESSED E ) 6/17/2013 1:02 PM ELETE XPLICITLY XPLICITLY D E OT N O OT OT N MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ISHES ISHES .MACROS (D W OUNG .Y If the dead Sara continues to have an interest in Imagine that Sara left no explicit instructions but has This section considers the implications of the identity of the RIOR RIOR P NFERABLE UBLISHED interests of living and dead individuals in relation to their own it of corpses, treatment the interests in societal rather than bodies does not pursue further the nature of society’s interests dead. the of in treatment the B. I 224 in the first place. These reasons could include wanting to give confidence to the living that their wishes will be respected which (in case the refusal would have to be public affect knowledge to the interest), interests believing (in which case the refusal that would the knowledge dead to affect the have interest), wanting to ongoing show respect the for person that was, However, or since for this any article number is of primarily other concerned with reasons. the P decision decision to Sara’s reasonable family, and dignified the use of Sara’s state body state it could could wished, mandate or as the make little interference whatever as body. possible with the posthumous bodily integrity, there are two fulfill that interest. possible The ways first is to to try to infer what Sara would have wanted based on her personality, beliefs, and values. In surviving surviving friends and family who knew the deceased, or there are known facts about the deceased that could lead to inferences been. have would wishes her what about surviving friends and family, or she has such known affiliations, as a religious affiliation, treatment from of her which corpse could wishes be inferred. regardinglogical possibilities for how to proceed. There the For example, are we could several attempt to infer what Sara would have values and beliefs we attribute to her, we wanted could simply leave the based on the rights-holder rights-holder for situations in explicitly which make the deceased her did wishes not known, but where there are 33718-mqe_14-2 Sheet No. 44 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 44 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 45 Side A 07/02/2013 13:56:24 Substituted 225 . 8 (1983), for a discussion EP 64 .R Part I.C. TR C supra elationship-topics/informed-consent.page elationship-topics/informed-consent.page ASTINGS ) 6/17/2013 1:02 PM , http://www.ama-assn.org/ama/pub/physician- discussion discussion N , 13 H ’ ELETE SS See D Thus, in the absence of known wishes, wishes, known of absence the in Thus, OT 65 .A N O ED .M M POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS , A .MACROS (D OUNG .Y The second way to fulfill Sara’s posthumous bodily That said, a right to posthumous bodily integrity exists for UBLISHED 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 living integrity are of considered to the be potentially significant violations of individual autonomy. integrity integrity is to interfere as little as possible Surviving with friends and Sara’s family may corpse. 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 64. See generally Thomas G. Gutheil & Paul S. Applebaum, Applebaum, S. Paul & Gutheil G. Thomas generally See 64. Judgment: Best Interests in Disguise 2013] 2013] other words, surviving loved ones could enter into a process of substitute decision-making not unlike that found in the medical patients. to incompetent relation in context P 65. In fact, informed consent must accompany, practically, every procedure. procedure. every practically, accompany, must consent informed fact, In and history of incompetents. the various 65. tests used Informed in Consent substituted decision-making for wishes wishes cannot be inferred, either burial or cremation, most the two common and accepted means appropriate. of disposal, would seem different reasons than the right to bodily integrity while alive: it can only protect critical interests, not experiential ones. result, As the a balancing of interests of the others in the treatment deceased’s of the deceased’s body need interests against not lead the to the same outcome in relation to dead bodies as live ones. If the interest in posthumous bodily integrity is less than the interests compelling in bodily of integrity the living seen as the preferable course of interferences action with may a be prohibiting organ donation corpse to and medical research or permit as education. as possible Of course a body must be disposed of in some manner. If few Sara’s by, for example, resources/legal-topics/patient-physician-r (last visited May 23, 2013). as battery. unwanted touching This is because the medical and legal fields view M K C Y 33718-mqe_14-2 Sheet No. 45 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 45 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 45 Side B 07/02/2013 13:56:24 M K . C Y EV EALTH H .L.R AL EWS N According to to According U.S. , 81 S. C [Vol. 14 14 [Vol. 68 they are doing what think think ) 6/26/2013 12:02 PM ELETE D OT Part II. II. Part The Right Not to be a Genetic Parent? N O supra MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE This fact, combined with the benefit to recipients of of to recipients thebenefit with This fact, combined .MACROS (D 67 In the organ donation context, at least, it is well well is it least, at context, donation organ the In 66 discussion discussion OUNG See .Y The above analysis is oversimplified in that it assumes a . Survey Shows Many Want to Donate Organs, But Few Do, (Apr. 16, 2009), http://health.usnews.com/health-news/managing-your- 2009), 16, (Apr. 67 AY UBLISHED established established that most people would consent to being donors, even though most preference. people do not legally register any long as surviving family and friends Kramer, Kramer, however, only Sara’s desires that are reflected in what others knew about Sara survive approach, death. it Based is on unclear the undertake to latter whether infer what Sara would friends have wanted because and it is not whether Sarathe dead clear retains inan interest that desires family should might be inferable but were never expressed. To the extent the interests of the dead relate to the way the memories dead live of on the in living, the those interests can perhaps be met so 66. See Glenn Cohen, Cohen, Glenn See 66. D 226 (perhaps because of argument the could be lack made for setting of different defaults dead than for experiential the living. For example, for all dignified interferences the interests), an with a corpse could be allowed unless one opts out. That might encourage people to make donation, for an example. active Alternately, decision the what a majority of about people would default choose to do if they could addressed organ reflect the issue. P 1115, 1115, 1187–96 (2008), for a discussion performed. of why certain kinds of defaults may be 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. an opt-out default, could approach to organ donation. The point be is that a default of non- argued to interference in justify the an absence opt-out of relation to living bodies, is less obviously appropriate in relation consent, while appropriate in interests. ongoing have dead the if even bodies deadto Feinberg/Pitcher rather than a Kramer approach to the interests 68. healthcare/articles/2009/04/16/survey-shows-many-want-to-donate-organs-but-few- do. 68. 33718-mqe_14-2 Sheet No. 45 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 45 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 46 Side A 07/02/2013 13:56:24 227 ) 6/26/2013 12:02 PM ELETE D OT N O have unexpressed critical interests, she is now now is she interests, critical unexpressed have did POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y If Sara expressed no wishes because she had no critical If, on the other hand, Sara no longer has an interest in It is less obvious in the context of unexpressed wishes, UBLISHED dead bodies are often considered upsetting, morbid, or There taboo. are, therefore, many reasons why such matters may death. before not discussed be explicitly interests, then there is no need to try to infer have wanted if what her interests terminated on her death. she However, would even if Sara however, however, that we should seek to infer order to give confidence to Sara’s the living that their own prior wishes will wishes in be respected. People will not necessarily have confidence that unexpressed wishes will be inferred and respected. In addition, those who do not treatment of their dead bodies express may not have critical interests in particular wishes the regarding treatment of the their corpse one should be careful not to assume interestshad no critical a person way or another. Yet, regarding the one treatment of her corpse just were because no wishes expressed. personal, and about conversations the treatment and disposal of One’s posthumous interests are deeply bodily integrity and the interests and rights those at of other stake living individuals in the are future treatment of only their own cadavers, the actions unexpressed one wishes should are take appropriate for friends sometimes and family to in try to infer the different. deceased’s relation to prior wishes. The reason for this, is however, to give confidence It may to living be individuals that their own families will make decisions values. and beliefs individuals’ reflect those that 2013] 2013] interests Sara’s example, Forwanted. have would the individual would be met Feinberg’s, by burying her with under her husband if she had a secret Kramer’s approach, true love but with not whom Whether or not, she and under to what extent, family members should would try rather have to been infer buried. the deceased’s depend prior on wishes the should degree wishes. to those infer ability their in confidence then, to perhaps, which the family members have P M K C Y 33718-mqe_14-2 Sheet No. 46 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 46 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 46 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. Part II, for a discussion of balancing those those balancing of discussion a for II, Part ) 6/26/2013 12:02 PM supra ELETE D OT N O NKNOWN Again, however, the distinction between U 69 MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ISHES ISHES .MACROS (D W OUNG .Y Now imagine that Sara has died without expressing her Nothing Nothing in the foregoing precludes next of kin from trying RIOR RIOR P UBLISHED interests in setting defaults. interests in setting require doing as little as possible to Sara’s corpse. She will harmed be by interferences with her corpse have that agreed to; she and so, would like in the not medical context, the default should be not to touch without her consent. body any more than necessary wishes wishes regarding the treatment of her corpse and surviving friends or she family to has make a no substitute decision based on her inferred wishes. Further, she had no known affiliations case, respecting be In this inferred. wishes could her which from the interests of the dead in posthumous bodily integrity may 69. Although, see discussion discussion see Although, 69. treatment treatment of a loved one’s body and not those of the deceased or corpse. future own her to relation in person of a living C. donating organs without the individual’s prior consent. prior the None of consent. individual’s without donating organs these actions could violate the interests of because the she interest-holder, no longer exists. Nor are these actions harmful to the critical interests of the living in the treatment of their corpses if no promises were broken belief and that people’s their own threatened. not obviously is respected be will wishes own 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 228 dead and has no interests. The goal of assuring the living that their wishes will be respected is have not not ignored Sara’s jeopardized wishes – we because simply do we not know what they were. The implication of this is that if interests belong only to the living, it does not matter interest – in from posthumous the bodily perspective integrity of – an what is corpse done (within reason, to as the discussed below). The family’s or nothing doing mandate could the law or prevail, could wishes own P 33718-mqe_14-2 Sheet No. 46 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 46 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 47 Side A 07/02/2013 13:56:24 anything anything 229 almost almost ) 6/26/2013 12:02 PM ELETE D OT Part II. II. Part N O supra POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D Therefore the conclusion that we should interfere as as interfere should we that conclusion the Therefore 70 discussion discussion OUNG See .Y Note the qualification above – one may do The ability to do almost anything to the corpse of someone If, however, Sara’s interests in the treatment of her corpse UBLISHED without affecting a posthumous interest in bodily integrity. interestThis integrity. a affecting in posthumous without bodily limitation relates to unusual, and therefore unpredictable, integrity integrity as belonging death. after persisting only to living individuals versus individual 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 prior wishes those are unknowable, whose because the living can avoid this fate by expressing their wishes to others, especially in a legally format. binding whose wishes are unknown, without affecting posthumous an bodily interest integrity, in is perhaps difference the between most viewing significant an interest in posthumous bodily anything anything with her posthumous bodily body integrity. This without does not mean that violating others’ interests cannot be an affected: undignified treatment of interest a corpse, for in example, may harm the interests of surviving family as friends well and as society at large, which has an dignified interest treatment in the of human remains. The interests point of is a living that individual the in her own posthumous integrity bodily 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 little little as interests. possible to posthumous approach Feinberg/Pitcher with Sara’s corpse applies terminate on only her death, it should to be permissible to do a almost 70. 70. 2013] 2013] Feinberg and somewhat. Kramer’s Under Kramer’s view, a deceased approaches person with surviving no friends complicates or interests. matters family generally has no posthumous P M K C Y 33718-mqe_14-2 Sheet No. 47 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 47 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 47 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/26/2013 12:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG opposed while alive, although we have no way of .Y My intuition is that the former is only worse than the latter Whereas the first reason suggests that people have formed If only living people have an interest in their own UBLISHED 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 deceased had no opinion on in in life but might have opposed had doing something that she the considered the options. Only interests that are if not dependent on what the the living know about dead have ongoing them is the possibility of a moral difference plausible. Then I actually knowing of that opposition now, and acting deceased in never contemplated. a In other words, manner it may be the 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 alive. while the possibility if one thinks that the dead have a right to integrity posthumous bodily on a Feinberg-type basis. death, or if If the dead all have interests interests only to end the extent with they are Second, Second, and relatedly, these because most practices people do are not want unusual their display. put on or frozen be cryonically to want do not way: they bodies treated in in this part opinions that they consistent simply with the possibility that do an individual never formed not a of his about or while her particular an alive, treatment opinion, express, the second corpse. is This would expressed fall under and the not category distinction between acting in inferable, of a manner the deceased might have wishes but not there may be a moral 230 treatment of a corpse, exemplified here by cryonic preservation display. purposes public of the for plastination and posthumous bodily inappropriate to permit integrity, unusual interferences with a corpse in it the absence of expressed may, or inferable wishes. reasons for this. nevertheless, First, because these practices are There very unusual, are two be most people would not think to express an opinion about them. P 33718-mqe_14-2 Sheet No. 47 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 47 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 48 Side A 07/02/2013 13:56:24 . This is 231 Body Worlds – by either burying or or burying either by – 71 ) 6/26/2013 12:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y It is highly unlikely that families or the state would want to The point of limiting unusual or unpopular uses of corpses UBLISHED death death and whose displaying wishes those were people’s not corpses in inferable, but not by cremating cremating the bodies of those who expressed no view before dignity, 71. if we allow It is organ still donation arguable that by wish there thoseis to harm who be to didn’t society donors. at affirmatively large, based Alternately, express on of recipients human a course, have is interests that the argument should that trump potential any what will organ individual’s become of interest her cadaver. in Recall, however, deciding that the focus of body.this one’s own to in relation integrity bodily to posthumous right the article is their bodies satisfied. They expressly might mentioned worry before that death anything would remains. their of fate the about not worry therefore, might, be fair game and donate people’s corpses for such procedures without knowing it was what the deceased wanted. interest But in the posthumous bodily point integrity is belonged that living we only could if act morally to – at an least in the relation to the interests of living people in their own bodies 2013] 2013] 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 issue. the had contemplated she wishes have been contrary to the person’s to situations in which there is actual prior consent is that if we imposed such uses in the absence of people might not expressed have their critical wishes interests in the living treatment of P people who do not want to relativelyrare. be donors, and donation is still because because burial and cremation are both sufficiently well known done no harm is – there the population to most of and acceptable to the critical interests of the living by making, say, cremation, the default for those Neither of who these things is true of less expressed frequent interferences such no views as while plastination alive. and cryonic preservation: known they and are much both less popular. little falls Organ donation somewhere presumably in between, in willingness that to most donate people but express there a are significant numbers of M K C Y 33718-mqe_14-2 Sheet No. 48 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 48 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 48 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. corpses. These These corpses. NTEGRITY I own ODILY B ) 6/26/2013 12:02 PM ELETE OSTHUMOUS D P OT N O IGHT TO TO IGHT MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE R .MACROS (D OUNG EGAL .Y The laws discussed below grant rights to posthumous Recall why it is that (living or dead) individuals may have AL UBLISHED spend considerable sums on solid wood caskets or urns); decorative some want to be organ donors, while interred others intact, wish to and be therefore wish donation to but autopsy, avoid if not possible. only interests critical inthe following tenets of one’s religion, in being organ These wishes may reflect altruistic, or in any number of views about the good life. And interests. these protect to laws enacted have we so, bodily integrity in relation to individuals’ individuals. individuals. With this foundation in place, specific Part types of IV decisions that considers 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 the or other. view reflect one to changed considers how laws might be interests in relation to their cadavers. Essentially, most people care, to varying degrees, what happens to their bodies after they die. Many have a preference strong for burial or cremation (and 232 IV. Part II how the demonstrated living and the dead can, at least in theory, have interests in relation to posthumous events and how these interests can ground happens after legal death. Part rights III demonstrated in some of the relation moral implications that flow from to viewing an interest what in posthumous bodily integrity as belonging to the dead or only to living P an interest in the surviving treatment friends and of family that can treatment be corpse. of a harmed loved one’s remains, by or by For the having a loved careless one’s example, organs removed for transplantation surviving if family members. In that addition, society has is an interest disturbing in ensuring to that human remains are treated may, with therefore, dignity. be It evident that people should treat human laws in no way deny, and often affirm, that will others also have 33718-mqe_14-2 Sheet No. 48 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 48 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 49 Side A 07/02/2013 13:56:24 73 233 ibiting ibiting burial near a provide advance consent to to consent advance provide A person who commits a sexual would ) 6/17/2013 1:02 PM ch. 144, § 35 (2012) (proh (2012) 35 § 144, ch. . 201.450 (“ ELETE TAT AWS D OT .L .S N EV EN O .G ASS POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS , 2012 N , M It is a criminal act regardless of whether a person .MACROS (D 72 These reflect both society’s interest in the dignified dignified the in interest society’s both reflect These OUNG 74 See, e.g. See, e.g. .Y For example, many U.S. states criminalize certain acts in The right to posthumous bodily integrity is reflected in laws laws in The reflected is right integrity bodily to posthumous UBLISHED Other Other laws require dignified prescribed disposal locations that of will avoid corpses possible in threats health. to certain public 72. 72. whose corpse is at stake as the rights-holder. rights-holder. as the stake is at corpse whose relation to a corpse on Necrophilia the basis is that they commonly implicitly. are undignified. prohibited, either expressly or 2013] 2013] corpses with respect, but it does not follow from one’s to relation in integrity bodily to right a be that should there that premise 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 violated. at Thus, laws that issue respect a right whose to posthumous rights bodily stand integrity must to be distinguished be from laws that protect corpses from interference but do not treat the (living or dead) person P manner that protects the well-being of the necrophilia and living. undignified disposal could also Of harm the loved course ones of the deceased. The point harms the general public is but rather that it not is harmful regardless that necrophilia only of whether it can be said to be harmful prohibition to on the necrophilia deceased. and The the requirement of a disposal are therefore primarily with not concerned posthumous dignified integrity. bodily that require an individual’s consent some for unexpected) most interferences expected with (and a corpse. The consent consents consents in advance to having her dead body used in this way. treatment of corpses and its interest in disposing of corpses in a water supply). water supply). penetration penetration on the dead body of a human being is guilty of a category A felony . . . .”). necrophilia, 73.but there are many people It who consider may their corpses seem to than tissue be and would no unlikely conceivably consent more to necrophilia. that Regardless, the point is someone irrelevant. be legally consent would suchthat 74. M K C Y 33718-mqe_14-2 Sheet No. 49 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 49 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 49 Side B 07/02/2013 13:56:24 M K , C Y N ’ OMM The The 75 Consent is is Consent 77 [Vol. 14 14 [Vol. .L.C NIF U The default under the 76 In other words, the UAGA UAGA the words, other In 78 to be an organ donor. donor. an organ to be ) 6/17/2013 1:02 PM not ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE §4(2008). §4(2008). §§ 4–5 (2008). §5(2008). ONATION .MACROS (D D OUNG Acts: Anatomical Gift Act (2006), .Y RGAN RGAN Section Section 4 of the UAGA states: “an anatomical gift of a The discussion of organ donation first demonstrates that All U.S. states have adopted some version of the Uniform O UBLISHED required required to displace that default. 77. U.A.G.A. 78. U.A.G.A. donor’s donor’s body or part may be made during the life of the donor reflects an opt-in approach to organ donation, which is the case in all common law but countries not in many law civil countries, where next or unless her is a donor the default to allow donation wish a expressed has of kin UAGA UAGA is that no organ donation will occur. 75. 75. reproduction reflect an interest in posthumous bodily integrity. integrity. bodily posthumous in interest an reflect reproduction A. 234 requiredof the the consent is advanced person whose preferably deceased body is at issue. The substitute consent of the next of kin or executor may suffice, advance but consent only of the in deceased. the In absence other grant individuals words, of a legal these right the to laws make binding decisions about the treatment of their bodies after governing death. organ donation, In medical education particular, and laws research on cadavers, choosing burial or cremation, and posthumous P UAGA grants competent adults the legal right to decide whether whether decide right to the legal adults competent grants UAGA or not to be posthumous organ donors. Anatomical Anatomical Gift Act, the majority of which 2006 have adopted version the (hereinafter referred to as the UAGA). organ organ donation laws integrity grant and then considers whether that a right belongs only to right the living, to or also to the dead. Put another way, it examines the posthumous bodily implications for organ donation policy of whether the right not survives death. donor an organ to be http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006) http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006) 2013). 17, May visited (last 76. U.A.G.A. 33718-mqe_14-2 Sheet No. 49 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 49 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 50 Side A 07/02/2013 13:56:24 . 69 Organ An An HIL 86 80 P PPLIED PPLIED &L. 687 (2005); (2005); 687 &L. 235 Y ’ 85 ,15 ,15 J. A OL ., P OL Individual and Individual Family Decisions P Although refusal is is refusal Although 83 EALTH . 26 (2007); and Paula Boddington, HIL ) 6/17/2013 1:02 PM P Assisting Altruism: Evaluating Legally Binding ,30 J. H J. ,30 ELETE She may also withdraw consent at any any at consent withdraw also may She D 81 PPLIED PPLIED OT A N O 82 24 J. Consent to donating one’s organs may be be may organs one’s donating to Consent 79 §7(2008). §7(2008). §9(2008). §7(d)(2008). §4(2008). §4(2008). POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS note 35, at 87–88; T. M. Wilkinson, Wilkinson, M. T. 87–88; at 35, note .MACROS (D supra Refusing to donate, as opposed to not deciding deciding not to opposed as donate, to Refusing OUNG 84 .Y U.A.G.A. U.A.G.A. U.A.G.A. §§ 5, 10 (2008). U.A.G.A. § 6 (2008). Notwithstanding Notwithstanding that the UAGA clearly grants priority in The UAGA provides not only for consent but also for In response to the family veto, the 2006 version of the . . 83 81 UBLISHED Donation After Death – Should I Decide, or Should My Family? time before death. before time 80. 80. individual individual may choose to donate all or only certain parts of her body, at her discretion. 82. 82. 84. U.A.G.A. 85. U.A.G.A. presumed, where the deceased did not consent or legally refuse recognized manner, in family a members, in a hierarchy set out by the UAGA, may decide whether to donate their relative’s organs. the deceased previously consented. In practice, even where an individual has given her legally binding consent organ to being donor, an organs veto. family as the will known This is family. by the opposition not be retrieved in the face of decision-making decision-making to the individual potential donor, well-documented there is practice a of medical wishes of surviving family staff members to refuse donation even adhering if to the given given in a will, in a signed organ donor card, or orally. whether whether to donate, means that the family has no legal authority behalf. deceased’s the on to donation to consent 86. For description and discussion of the family veto, see Jennifer L. Mesich- L. Jennifer see veto, family the of discussion and description For 86. Brant & Lawrence J.Consent in Grossback, Organ Donation Policy 79. U.A.G.A. § 4 (2008). 2013] 2013] for the purpose . . . education .” of transplantation, therapy, research, or P legally binding refusals to consent. (1998). (1998). UAGA UAGA makes explicit that the law grants the decision to donate first to the individual potential donor and not the surviving Wilkinson, Wilkinson, About Organ Donation, M K C Y 33718-mqe_14-2 Sheet No. 50 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 50 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 50 Side B 07/02/2013 13:56:24 M K . C Y 5–9 5–9 OMP IFE IFE .C L The The IRECTIVES IRECTIVES LL 88 D ND OF E [Vol. 14 14 [Vol. DVANCE DVANCE A ent would have done or EAR THE N AKING , T LICK ECISIONS D e substitute judgment standard and how to what the pati S. O ) 6/17/2013 1:02 PM OBERT OBERT ELETE D OT Part III. III. Part UTONOMY AND N O A supra MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE The family may only consent to donation of the the of donation to consent only may family The .MACROS (D 87 Incompetence does not change the fact that the the that fact the change not does Incompetence ROSPECTIVE ROSPECTIVE 89 discussion discussion :P OUNG See .Y One potential difference between the law of substitute The provisions of the UAGA, therefore, largely mirror the . 40/20 (2007). For a discussion of th TAT ERIOUSLY UBLISHED patient’s interests are given priority. The UAGA, on the other hand, does not require the family to base its decision on what 89. Many states have statutorily adopted a substitute decision standard – at at – standard decision substitute a adopted statutorily have states Many 88. 89. least for certain types of treatment decisions. In Care Illinois, for example, Surrogate the Health Act states should that “conform[] as closely treatment as possible decisions for an incompetent patient (2001). (2001). intended intended under the circumstances.” Health Care Surrogate Act, 755 I courts courts have adopted it, see R 87. U.A.G.A. § 8 (2008). S 236 family: “[I]n the absence of an express, contrary indication the donor, a person other by 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 . . . .” P S consent consent to medical decisions consent and under the the UAGA family’s relates authority substitute to decision must to the be made. basis on In relation which patients, to the incompetent substitute decisions should, generally, be regarding based on what medical the wanted patients would treatment for have themselves or, interests. alternately, in the patients’ best “patient,” “patient,” if competent, has the right absence to consent; and, in of the Alternatively, if the consent, “patient” did not make her wishes donation known before becoming incompetent, is a family member may consent. substitute legally provide impermissible. organs organs or viable recipient, but there is effectively a right not to kin. next of your by overridden wishes your have law with regard to consent to medical treatment. deceased’s deceased’s body or refuse to consent if legally the consent deceased did or not refuse positive consent right while to be alive. a donor, in There that is there may no be no usable 33718-mqe_14-2 Sheet No. 50 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 50 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 51 Side A 07/02/2013 13:56:24 . . . may consent consent may . . . 237 . 50/5-20(c) (2007) (2007) 50/5-20(c) . . 50/5-5(b) (“If (2007) 50/5-5(b) . However, the the However, , be weaker than NN 90 NN .A .A TAT TAT .S de facto .S OMP OMP .C LL .C LL § 4301 (McKinney 2007). (McKinney 4301 § ) 6/17/2013 1:02 PM AW L ELETE . §§ 154.01–.3 (2012) (granting priority to advance D OT EALTH TAT N O .H .S IS UB P , W (i) actual notice of contrary intentions by the decedent of notice (i) intentions actual contrary POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS , N.Y. .MACROS (D 92 See, e.g. 91 Illinois Anatomical Gift Act, 755 I Act, Gift Anatomical Illinois OUNG See,e.g. .Y Illinois Anatomical Gift Act, 755 I 755 Act, Gift Anatomical Illinois and Organ Organ donation law, therefore, provides an example of a Another Another difference between the medical context and the decedent . . . or (2) contrary there to is the decedent's reason religious beliefs to . . believe . that then not be requested.). shall body the decedent's of the part an gift of anatomical all or gift any is (If (1) the hospital . . . has actual notice of opposition to the gift by the (Any (Any of the following persons, in the order of priority stated, may . . the absence . of in actual notice of contrary indications by the decedent . . . or reason to believe that an religious or anatomical moral beliefs, give gift all or any is part of the decedent's contrary body for . .). to . . specified purpose any the decedent's UBLISHED decision decision is not left entirely to their discretion. Some states’ laws indicate that if it opposed donation, is the next of kin may not known consent to it, even if that the the opposition deceased’s was not expressed in a legally binding deceased would have manner. 91. 91. 92. Advance directives, and other instructions that precede incapacity, can be be can incapacity, precede that instructions other and directives, Advance 92. problematic and the law does particular difficulty is not that it always is difficult require for people them to enough detail that anticipate physicians have circumstances confidence to that in they know what the be individual followed. would have wanted in the situation that actually materializes. However, where the One patient’s previously expressed wishes are sufficiently clear and present applicable to situation, her the family has treatment. no right to substitute its own wishes for her individual’s consent over that of need over family. be not the so: This consent individual’s veto, which suggests that integrity regarding organ donation may, the right to posthumous bodily legal right to posthumous bodily integrity. It makes the default that no donation can occur without consent, and prioritizes the organ organ donation context relates to the existence of the family 90. U.A.G.A. § 8 (2008). 2013] 2013] they think the deceased would have wanted. P directives). directives). no gift has been executed under subsection (a), any of the following persons . . no . and gift following any has been of (a), subsection the under executed in the absence of .”); . . . See also it appears on the face of the law. family veto There regarding is incompetent no patients: analogy I to am the aware of significant no practice of rejecting patients’ legally valid and clear advance directives in members. the face of opposition by family M K C Y 33718-mqe_14-2 Sheet No. 51 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 51 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 51 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y Where an individual’s wishes regarding organ donation Consider Consider now whose right to posthumous bodily integrity UBLISHED that the individual would have donor. objected Again, the to law is being consistent with an the posthumous relevant bodily integrity right organ belonging either only to to the living individual or persisting after death, but for different reasons. If the deceased is thought to have an ongoing right to posthumous Part bodily suggests III.B way that integrity, the best to fulfill the deceased’s ongoing interests is for the law to mirror that of the interests of the if dead, they have any, and respectwould the critical interests of living people in integrity by giving their them confidence posthumous that their own bodily wishes will be respected in the future. Thus, the UAGA’s requirement that the deceased’s express wishes be respected is either consistent the with dead having or integrity. bodily posthumous not having a continued right to were not made explicit (legally or otherwise) but arethe inferable, law leaves the decision to the family, subject to that the some caveat states preclude the family consenting if it is known veto suggests, however, disagreement, at least among certain medical practitioners, with that in the way practice the law there loved ones. their of those over donors potential has is prioritized the some interests of individual the UAGA seeks to protect. Given the there discussion in are Part III, good or refusal consent to consent to reasons being donor, regardless an organ for respecting of individuals’ whether an interest express in posthumous bodily integrity survives death. This is because respecting express wishes would protect 238 the state could conscript organs, it could leave the the decision family, or it could, at least, presume consent so as to increase to the supply of organs available for donation. The law prioritizes individuals’ interest in posthumous bodily at and, organs needed receiving integrity dying in and sick the of interests over the least in theory, prioritizes individuals’ interest in posthumous bodily integrity over the interests whether of they want to donate the deceased’s organs. loved The family ones in deciding P 33718-mqe_14-2 Sheet No. 51 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 51 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 52 Side A 07/02/2013 13:56:24 239 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y The law approaches both with consistent is, the to therefore, Anatomical Anatomical gift law presumes a refusal to consent in the In the situation where the deceased’s prior wishes are However, However, if any interest in posthumous bodily integrity UBLISHED express express consent. That is, even where people’s prior wishes are unknowable, it could give comfort to the living they will never to be made organ donors unless know they, or their next that it. authorize of kin, affirmatively of one implications the but integrity, bodily to posthumous right are much more radical than the other. Organ donation law interest (on a Kramer-style approach). If the deceased can have no rights, then the result approach: is an the unexpressed same wish as cannot right. on posthumous a form Kramer-style the basis of a absence of known wishes. This could dead reflect have a right a to posthumous bodily view integrity on a Feinberg that the model, in that we should err consent on the to side avoid of potential presuming harm non- to could reflect a view that the right of the the living to decide whether dead. Alternately, it to be organ donors justifies precluding donation without their the rights of the dead, but rather to give confidence to the living respected. be will wishes inferable own that their unknowable, however, it does make a difference relevant whether right to posthumous the bodily integrity survives death or not and if so, on what basis. be either If right she will to bodily posthumous generally, integrity the deceased has an ongoing harmed by having unexpressed organs wishes (on removed a Feinberg-style contrary approach) or unexpressed else to her wishes her cannot form prior the basis of a posthumous 2013] 2013] substitute consent to medical treatment: a substitute maker decision- should make the decision deceased that would best have wanted reflects for what herself. accomplishes. the UAGA the what This is essentially ends with death, the substitute decision-making law where the might deceased’s reasonably prior wishes are still inferable. The allow purpose, however, would for not be to respect P M K C Y 33718-mqe_14-2 Sheet No. 52 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 52 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 52 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. 93 ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE text accompanying note 91. 91. note accompanying text .MACROS (D OUNG See supra .Y Thus, if the dead have no ongoing rights, then to preclude UBLISHED 93. 93. the the form of disturbing the believing one’s critical interests peace will be fulfilled. of However, that mind that violation comes can from be avoided binding about decision donation. organ Some states also protect if the individual makes against unwanted donation where a wish person’s not a to donate legally recorded. legally but wasn’t is known decision about decision organ about and not still donation, to have 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. dead But have if no the rights, the only integrity interest at stake in is that posthumous of bodily the living in believing will be carried their out. They can wishes never actually be subject to bodily interference contrary to their rights, because once dead they no longer have a right violation that would result from allowing to the removal of organs posthumous bodily fromwhose wishes wouldbe werein integrity. those a unknown violation Any 240 requires balancing the interests of multiple stakeholders in the use of dead bodies. As seen above, it prioritizes the interests of the potential organ recipients, donor the families over of those both, generally. But if any right and to posthumous of bodily integrity ends the interests potential of at death, organ the society 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 P still not be an organ donor, than to the competing potential interests organ recipients, of 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 ongoing interest have in posthumous bodily no integrity than if they do. donation donation in the absence of any known wishes is to rate a living person’s critical interests in her dead body very right weight gives notto a greater toand people’s decision make highly. This 33718-mqe_14-2 Sheet No. 52 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 52 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 53 Side A 07/02/2013 13:56:24 1109 (2010) (2010) 1109 241 ANCET Success Factors and Ethical , 376 L For those who consider the the consider who those For 95 could rely on arguments in the the in arguments on rely could 94 ) 6/17/2013 1:02 PM ELETE D OT N O David Rodriguez-Arias et al., al., et Rodriguez-Arias David POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D at 1110. 1110. at OUNG See generally Id. .Y Given Given the foregoing, I suggest an intermediate proposal for The policy debate over opting in or out of organ donation UBLISHED Challenges of the Spanish Model of Organ Donation to donation. Any such amendments are only appropriate where the law permits the registration of a refusal, which is under the 2006 UAGA, the but not in Ontario, Canada, for case example, dead to have ongoing rights to bodily integrity, especially on a Feinberg model, the argument to make. easier is law donation defaults organ in in favor of current consent amendments to organ donation law that should be palatable if the dead are thought to have no integrity. right The to law posthumous could bodily allow organ donation where there neither is a registered inferring refusal the individual’s to wishes. consent, As would mean where there is a no nor accessible next of kin who objects practical any matter, this means of is sufficient to preclude donation. previous previous paragraphs. That said, these arguments opt-out support model an most strongly in relation wishes only to are those whose unknowable, are good there be can inferred, wishes whose For those not express. to those reasons, whose even if the dead wishes have no rights, to respect were them. This might therefore best be reflected where the default is consent but in practice, any family objection in a European-style policy 94. 94. useful in policy debates. For example, those who do not the view dead as rights-bearers and who support an opt-out model of organ donation, like Spain’s, 2013] 2013] This is not to say that existing justified if anatomical the dead have no rights. gift But it is easier law to justify – at cannot be least where the deceased’s prior wishes are unknowable – if the integrity. bodily posthumous to right a have dead also 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 P 95. method). opt-out the (discussing 95. M K C Y 33718-mqe_14-2 Sheet No. 53 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 53 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 53 Side B 07/02/2013 13:56:24 M K , C Y 96 ETWORK N IFE IFE L [Vol. 14 14 [Vol. IFT IFT OF G RILLIUM , T ) 6/17/2013 1:02 PM . After all, by not requiring consent ELETE D OT N O status quo MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Frequently Asked Questions .MACROS (D OUNG .Y It could be argued that a distinction in legally permissible Another Another potential objection to this proposal relates to the More problematic is the fact that such a distinction would UBLISHED differences differences between those without explicit or inferable wishes and those who left instructions or whose wishes can be inferred as set out above, maintaining the complexity would be a poor reason for Without Without being able to register a refusal, it would be impossible for those without friends and family to avoid unwanted use of theirremains. 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 Ontario has 96. a “Frequently Asked Questions” section. The In response website to the of question: “Why the are only agency ‘Yes’ responses responsible to donation being for collected?” it organ states: “Our goal and is tissue to increase organ and donation tissue donation in Ontario. in Our research shows jurisdictions that have instituted a ‘Yes’ only registry registrations.” have experienced an increase in donor 242 where it is only possible to register consent, not refusal. P respected; respected; but, if she didn’t, treatment that may her be contrary body to the would interests she be held alive. while Such a subject policy of differential treatment would to 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 were dead whose not wishes inferable. Alternately, the differential public treatment could as view impermissible such unacceptable because in relation to living bodies. This begs the question it would be whether the fact of death changes the moral issues at stake, but a non-starter. be might such policy that is the point from from a subset of the population, the number of available donor lives. saving thereby increase, would organs suggest arguably and worse, differential, treatment of the bodies of those who were most alone in life. If family Sara had friends and to pass along her wishes, those wishes would be http://www.giftoflife.on.ca/en/faq.htm (last visited 24,Feb.2013). 33718-mqe_14-2 Sheet No. 53 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 53 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 54 Side A 07/02/2013 13:56:24 . See, status status quo Since this this Since 97 243 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y In addition, laws already exist that allow the removal of I am inclined toward the latter, although I acknowledge that that I acknowledge although the latter, toward I inclined am , S. (N.Y. Gen. Reg. 2010); 7721, 233rd Sess. S. 3613, 96th Assemb., Gen. Assemb., UBLISHED 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 no legally expressed wishes and no next of organs could be procured), my proposed amendment is kin perhaps (that is, their not unrealistic. In fact, my proposal presumed has consent in one that advantage it is over more consistent with anatomical gifts as an act.altruistic Rather presumingthan that people want to make the gift, it affirmative act presumes to change that they default. do However, the not proposal recognizes that once that and person is dead, she requires no longer has any an interest in what happens to her body and allows a gift to occur wishes. or inferable of known absence in the would have similar effects to my proposal regarding those with proposed bills that would have implemented some form of 97. presumed consent. Although no U.S. states e.g. have presumed consent legislation, several have Reg. Sess. (Ill.2010); S.11-042, 68th Gen. Assemb., Reg. Sess.(Colo. 2011). could 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 than bodily to the integrity interests of potential organ recipients). Alternately, risk. that and accept acknowledge one could the public may not be ready for such a change to the 2013] 2013] short timeframe in which organs may viably donation. be procured It for may be that the next immediately but is reached say, after, 48 hours. It is of problematic kin cannot be contacted to imagine taking organs because found the and there is next no registered refusal, only of to discover a kin day cannot later that while be the deceased, alive, made to her objections organ donation known. There are two responses to this problem, both of which require a balancing of competing interests. First, one P That said, various state legislatures have attempted to institute todonation. lawswouldorgan consent that presume M K C Y 33718-mqe_14-2 Sheet No. 54 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 54 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 54 Side B 07/02/2013 13:56:24 M K C Y . § 30-10- TAT glands and .S EV [Vol. 14 14 [Vol. .R OLO pituitary C See also to removing removing to DUCATION 99 E ) 6/17/2013 1:02 PM ELETE In other words, there is an opt-out opt-out an is there words, other In D 98 OT . § 12-12-320 (2009). N O NN A ODE ODE MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ESEARCH AND involved a lawsuit brought by parents who objected to the non- the to objected who parents by brought lawsuit a involved R .C .MACROS (D RK Newman Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002). A OUNG See See .Y EDICAL To summarize, U.S. anatomical gift law requires consent for Another Another way in which the law protects an interest in M UBLISHED 99. (2012). 621 99. Sathyavaglswaran of removal consensual their child’s deceased corneas. In the addition, trend seems tissue. all of for the removal consent requiring toward states to lean 98. 98. 244 opposition to removal. P rather than an opt-in approach an opt-in than rather public and legislators are of the view that interests protected by law can belong amending only anatomical gift legislation so to as to permit the use the of organs in living, the absence they of the individual’s should prior individual’s consent consider if wishes that were not expressed known. and cannot now be B. organ organ donation, and deceased. preferably This the is true prior wishes regardless are of known or consent whether knowable. the This is of deceased’s consistent with the either dead the or only the living having an bodily interest in posthumous integrity; but, deceased’s it wishes are is unknowable, with easier the to former. reconcile, If the where the lives. Note, however, that although such laws exist, it is far from from it isexist, far such laws although that however, lives. Note, clear that the public accepts removal of even consent. without and corneas pituitary glands corneas in some states. Although pituitary glands and corneas are different than hearts or kidneys, I see nature of the no consent requirement should depend reason on the nature why the of the organ. Or if arguably it does, be the consent requirement less regarding should the strict organs that improve regarding but do life-saving not (directly) save organs than how a corpse may be used for medical research Like or education. organ donation, the issue of medical research and posthumous bodily is integrity through on limitations when and 33718-mqe_14-2 Sheet No. 54 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 54 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 55 Side A 07/02/2013 13:56:24 . 50/5-45(a) . 50/5-45(a) TAT .S 245 . 50/5-10 (2007). OMP TAT .C .S LL , N OMP ’ .C LL OMM .L.C NIF The same consent requirements requirements consent same The U 101 ) 6/17/2013 1:02 PM Such statutes set out purposes for for purposes out set statutes Such It is likely that, by analogy to the the to analogy by that, likely is It ELETE 100 102 D OT N O ,Illinois Anatomical Gift Act, 755 I 755 Act, Gift Anatomical ,Illinois §§ 8–9 (2008). 103 POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS , Act, 755 Gift I Anatomical Illinois See, e.g. .MACROS (D OUNG Acts: Anatomical Gift (2006),Act See,e.g. .Y As with there organ donation, are societal benefits that flow By analogy with the discussion of organ donation above, UBLISHED 103. Some states’ legislation explicitly provide that the donee may accept or or accept may donee the that provide explicitly legislation states’ Some 103. reject the gift. (2007). (2007). which anatomical gifts may be made; and, in addition to organ transplantation these include medical and dental research, and medical or dental education. 100. 100. 2013] 2013] part, most the for that, legislation state by governed is education has adopted the UAGA. P relevant relevant if the did deceased not express her consent or refusal in a legally valid manner. 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 101. http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006) 2013). 17, May visited (last 101. 102. U.A.G.A. 102. family veto in would facilities be educational reluctant to take of possession the a organ donation corpse context, to which research they opposition by and the surviving family. However, to the extent were that legally entitled a right to posthumous in bodily integrity is a negative right rather the face than of a positive right, hospitals and this universities are not poses legally required to few carry consent prior out deceased’s the because simply corpse a on research problems. Certainly obtained. was from medical education and research. imagine a legal regime in which bodies were made available for One could therefore such use without the deceased’s prior consent or next of kin’s consent. without However, as with the organ donation, the law gives greater weight to society. and families of interests competing to the than integrity the interest in posthumous bodily laws governing medical corpses can research be reconciled either with a view that the and dead have educational uses of M K C Y 33718-mqe_14-2 Sheet No. 55 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 55 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 55 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y Now consider my legislative proposal, above, that organ This argument is, therefore, similar to one made above in UBLISHED allow the use of a person’s research body for when medical education that and unknowable is more justifiable, person’s if the living have an wishes interest in posthumous about bodily integrity, such than the use law’s organ wheredonation the person’s wishes are unknowable. The refusal are to allow high. not as are stakes 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 context. than This is because the in competing interests in the the medical organ and education are research contexts less than compelling in the donation organ donation context. In benefits the of former, medical there education are and important research, immediately but save they do lives. not however, can A save multiple single lives. cadaveric Thus, the organ law’s refusal donor, to they have a right to refuse to make a decision and still not have their body studied. students, Given and the society in benefit general, to it the is outcome than if less the sick, dead easy themselves are construed medical to as having justify a this right to bodily integrity. their If posthumous 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 knowledge that rights-holder’s one’s critical interests may not be fulfilled if one body rather protected. are ensure they to steps affirmative notdoes take than the 246 an ongoing interest in posthumous bodily integrity or that they do not. This is wishes are especially known. But even if they true are not known, the law still where the individual’s favors prior 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 P 33718-mqe_14-2 Sheet No. 55 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 55 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 56 Side A 07/02/2013 13:56:24 A A 104 , 55 P. 906 (Cal. 247 Despite academic academic Despite 107 nnell v. Slack These laws also protect an an protect also laws These 106 ISPOSAL courts applying the common law D ) 6/17/2013 1:02 PM 108 ELETE D OT EANS OF EANS OF Part IV.C. IV.C. Part N . § 19a-286 (2009). (2009). . § 19a-286 O M note 18, at 150 (citing O’Do (citing 150 at 18, note infra TAT .S , supra EN POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D .G discussion discussion Estate of Moyer, 577 P.2d 108, 110 (Utah 1978); Fischer’s Estate v. v. Estate Fischer’s 1978); (Utah 110 108, P.2d 577 Moyer, of Estate at 150–53. 150–53. at OUNG ONN PERLING .Y See Id. S 105 In In re HOOSING THE HOOSING Laws in many states allow individuals to decide whether . Id. C 108 UBLISHED 1899); 1899); Fischer,117 N.E.2d855, 859 (Ill. App. Ct. 1954)). 107. 107. challenges challenges to both premises, they will be buried or cremated. 104. C 104. allowed allowed for finding next of kin so as to being avoid the unsure problem of whether the known. deceased An made amendment to her anatomical gift prior laws laws wishes could in mirror some states that allow autopsy without the consent the next of of kin only if the next of kin cannot be contacted within a certain period of autopsy time. without consent For if a example, reasonable elapsed, Connecticut during amount which allows of the next time of kin has cannot be reached. 2013] 2013] from donation wherelaw procurement organ cadavers allow the person’s prior wishes are unknowable. I argued that this was a were the (and generally) if proposal reasonable public legislators of the opinion that an interest in posthumous bodily does not integrity 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 P interest in posthumous bodily individuals integrity. cannot make legally At binding means decisions common of about disposal law, of the their bodies. This succession is is said only because to contemplate transfers of the property and law of one’s body is not property at common law. C. 105. 105. reasonable reasonable amount of time is defined hours. as between 12 and 48 have consistently held that testamentary or other expressed 106. M K C Y 33718-mqe_14-2 Sheet No. 56 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 56 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 56 Side B 07/02/2013 13:56:24 M K C Y 114 112 109 ROCEEDINGS but some some but P 113 is “lawful and and “lawful is Section C of of C Section Further, the the Further, [Vol. 14 14 [Vol. 110 111 116 RANSPLANTATION RANSPLANTATION , 40 T at the agent believes Family Overrideof Valid Donor Consent to § 4201(2)(a)(i) (McKinney 2012). (McKinney 4201(2)(a)(i) § ) 6/17/2013 1:02 PM AW . 65/5 (2012). (2012). 65/5 . Law § 4201(2)(c) (McKinney 2012) (stating that that (stating 2012) (McKinney 4201(2)(c) § Law L TAT ELETE D .S Depending on the state, that designated (2012). .§32-1365.01(C) .§32-1365.01(A) (2012). (2012). (2012). .§32-1365.01(A) .§36-831.01(A) EALTH OT EALTH § 34-13-11 (2013). In addition, all Canadian provinces provinces Canadian all addition, In (2013). 34-13-11 § J. Downie et al., al., et Downie J. 115 N NN NN NN OMP .H .H O See ODE .A .A .A .C UB UB LL .C TAT TAT TAT LA MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .S .S .S , Saleh v. Reichert (1993), 104 D.LR. 4th 384, 391 (Can. Ont. (Gen. , A , N.Y. P EV EV EV , 755 I ,P N.Y. .MACROS (D .R .R .R RIZ OUNG RIZ RIZ See,e.g. See,e.g. See, e.g. See, e.g. See, e.g. .Y A A That said, most U.S. states have overridden the common In states where one may decide how one’s body will be Many states have statutes similar to Arizona’s, UBLISHED 110. Div.)) (stating that in law.”).be enforced or her in body cannot his of disposition Canada “the expressed 110. wishes of a person as to the person person who has the legal duty follow to the dispose of deceased’s the wishes body burden. financial and reasonableness to relating exceptions must regarding disposal, subject to grant to next of kin the right to decide the means of disposal, 113. 113. 111. A 111. 115. (2008). 1257 1255, 115. 114. 114. while others allow individuals to designate whomever they wish wish they whomever to designate individuals allow while others to make the decision. person person may or deceased. by the left may expressed instructions not be bound to follow any validly 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 that: provides “[a] legally statement directing competent the cremation or other lawful disposition of adult may the legally competent adult’s prepare own . . . remains .” a written 109. 109. 248 binding. not are corpse of one’s disposal the about wishes P except except Quebec and British Columbia leave law. common of matter that decision to the next of kin as a 116. 116. disposed, disposed, the decision is limitations of not reasonableness and cost unconstrained: (mentioned above) there in addition to the same provision clarifies that if such cemeteries and a crematories do statement not need is to obtain anyone made, else’s consent to carry out the selected disposition. 112. 112. a decedent’s wishes are constrained by practicable”). wh Postmortem Donation: Issues in Law and Practice 33718-mqe_14-2 Sheet No. 56 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 56 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 57 Side A 07/02/2013 13:56:24 , to but but Body Body uses uses 119 Safety Safety 117 Body Worlds 249 Body Body Worlds , § 7102 (West 2012) (listing burial, burial, (listing 2012) (West 7102 § , Bodies: Bodies: The Exhibition 118 According to to According ORLDS 121 W ODE C ORLDS ODY W 120 ) 6/17/2013 1:02 PM , B exhibits preserved corpses for AFETY ODY ch. 114, § 35 (2012). (2012). 35 § 114, ch. is legally binding. Presumably Presumably binding. legally is ELETE ,B &S D AWS OT .L note 18, at 171–85 (outlining limitations on the ability to to ability the on limitations (outlining at 171–85 18, note N O As a result, consent is required. (As (As required. is consent result, a As EN EALTH EALTH 122 .G supra .H , AL ASS Body Body Worlds Body Worlds POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS , C ,M .MACROS (D PERLING S OUNG would prefer to relinquish any legal claim to a cadaver See,e.g. Body Donation for Plastination See .Y Alcor Life Extension Found., Inc. v. Mitchell, 7 Cal. Rptr. 2d572, 575 (1992). the of Exhibitions Mission See, e.g. One can also designate an organization like Usually the choice is between burial and cremation, . 120 UBLISHED Worlds be the donee of one’s corpse through anatomical gift legislation. Recall that anatomical anatomical gift legislation is the legal mechanism by receives which it corpses. 118. corpse). one’s of disposal of manner determine the 118. 119. 119. discussed discussed in Part I.A, competitor concerns concerns are reflected in laws that limit the locations in which human remains (whether cremated or not) may be disposed supply.water a near not example – for Chinese Chinese bodies whose consent would not have been obtained in accordance with anatomical gift law.) have not However, legislated specifically in most relation to states preserved cadaver their apply would states those that clear not so is it and exhibits, anatomical gift law to this context in the same way as to organ donation or medical research. litigation regarding whether an Further, individual’s consent I to donate am her body aware to of no 122. http://www.bodyworlds.com/en/exhibitions/mission_exhibitions.html (last visited 2013). May 24, 122. 117. 117. 2013] 2013] are restrictions relating to public safety and dignity. P http://www.bodyworlds.com/en/body_donation.html(last visited Feb. 4,2013). educational educational and artistic purposes. cremation, and burial at sea as legally valid means of disposing of a corpse). a of ofmeans disposing valid legally assea at burial and cremation, technology technology permits – is a legally valid means cryonics company is of selected as the donee disposal of the body if pursuant a legislation. gift to anatomical other 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 121. 121. M K C Y 33718-mqe_14-2 Sheet No. 57 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 57 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 57 Side B 07/02/2013 13:56:24 M K C Y tate -type -type Bodies: Bodies: The Hawaii’s Hawaii’s Although Although 126 128 [Vol. 14 14 [Vol. Body Worlds that that the French litigation ) 6/17/2013 1:02 PM ELETE D relied on arguments based on the dignity of human human of dignity the on based arguments on relied OT N note 1, at 185–89 (discussing (discussing 185–89 at 1, note O . § 327-38 (2013). (2013). 327-38 § . State legislative proposals have tended to to tended have proposals legislative State However, notwithstanding the controversy controversy the notwithstanding However, note 1, at 183–84. at1, 183–84. note 125 124 127 supra . § 406.61 (2009). (2009). 406.61 § . TAT MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .S . § 406.61 (2009). (2009). 406.61 § . TAT EV , Alcor Life Extension Found., Inc. v. Mitchell, 7 Cal. Rptr. 2d 572, supra supra , H.R.Gen. Assemb.,2008 2299, Leg., Sess. Reg. (Pa. (requiring 2008) .S .MACROS (D TAT .R but in most cases, these laws have not (yet) been been (yet) not have laws these cases, most in but scandal over the non-consensual use of Chinese Chinese of use non-consensual the over scandal LA .S Giunta, Giunta, 123 AW OUNG LA See, e.g. See, e.g. See .Y Giunta, F H Bodies: The Exhibition Both Both cryonic preservation and preserved cadaver exhibits Some states have proposed legislation that would prohibit Contrary to this trend, Hawaii has banned . 125 UBLISHED 575 (1992); F (1992); 575 2008 2008 Leg., 2007-2008 Sess. (Cal. 2008) (legislation was enacted in California but was returned without Governor Schwarzenegger’s signature, 2011). (N.Y. Sess. and Reg. Leg., 2011 1130, S.B. law); so did not become 124. evidence of informed consent for public display of human remains); Assemb. 1519, 128. against remains). 128. cadaver cadaver displays altogether, regardless of consent. consider consider them appropriate and human remains. respectful ways of treating law followed, and presumably was triggered by, the Exhibition prisoners’bodies. have been controversial, worldwide, in that some do not 123. 123. enacted in 2009. 250 rather than risk the public relations nightmare of fighting with grieving survivors over the right to display. public on her put and polymers inject the deceased with such exhibitions for consent, profit without enacted. One exception is Florida the where legislation prohibiting deceased’s certain prior displays of preserved cadavers without consent was P surrounding surrounding the potential indignity, Americans can choose have to their corpses cryonically display and the preserved law may well or protect this choice. put on public 127. 127. emphasize emphasize the need for consent rather entirely. displays than proscribing such neither the common law nor legislation grant a positive right to be cryonically preserved or put on display, laws such anatomical as s gift legislation and specific statutes regarding 126. 126. 33718-mqe_14-2 Sheet No. 57 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 57 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 58 Side A 07/02/2013 13:56:24 129 251 ) 6/17/2013 1:02 PM ELETE D OT N O . § 406.61 (2009). (2009). 406.61 § . POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D TAT .S OUNG LA .Y However, However, the fact that some states maintain the common Having Having established that many states’ laws regarding UBLISHED interests interests to make her final resting place rejected than it would one be a violation of a she living person’s interest would have in posthumous bodily integrity to simply whathis final resting placewill be. deny mirrors This those argument him a say in above in the organ donation and medical education contexts, in individuals 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 corpses interest will in be treated, how but that their allowing future them respecting to that decide and decision gives confidence to be protected. will interests critical own others that their law approach of not letting individuals decide for how their themselves bodies will be disposed may suggest a view that the interest in posthumous bodily integrity living. It belongs would arguably be only a worse to violation of a the decedent’s wishes wishes of the family and amounts over to some dignified treatment people’s – at sense least in of some states. what interest, however, must give way to competing interests That in other at stake. is health public where as such contexts, disposal of corpses grant a right to posthumous bodily integrity, the question becomes whose posthumous bodily integrity? In states that allow themselves, the law appears equally consistent with a view that individuals to the interest ends at make death or that it the survives death. Allowing decision for Further, Further, laws granting individuals the right to decide how their corpses will be posthumous bodily disposed integrity that of takes exemplify precedence over a the legal right to 129. F 129. 2013] 2013] 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 of cadavers. use that no consent for there was unless permitted that such exhibits should generally be P M K C Y 33718-mqe_14-2 Sheet No. 58 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 58 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 58 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. .L.J.1027, 1027 (1994). (1994). 1027 .L.J.1027, It need not involve It need not involve ND 130 , 69 I ) 6/17/2013 1:02 PM ELETE D OT PosthumousReproduction N O EPRODUCTION R MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y OSTHUMOUS Another Another possible explanation is that one’s body must be Posthumous Posthumous reproduction refers to conception or birth after P UBLISHED removed removed from the living and used to create an embryo after the death of the genetic parent. This raises issues of autonomy reproductive but need not implicate posthumous bodily integrity. However, there are posthumous two bodily integrity types is of mortem necessarily sperm removal and implicated: reproduction the maintenance of post- a in legally dead which interference interference with a corpse: for example, sperm or eggs can be 130. John A. Robertson, Robertson, A. John 130. be organ donors and even fewer still will be cryonically frozen or put on display in unexpected a the museum. use of one’s It cadaver, individuals may have the in be greater making a that the binding decision interest the about that more use, them. to acceptable be to likely less is it since D. posthumous posthumous bodily integrity disposal. means of the choosing of context should be diminished in the disposed in some way and the decision about means alternatives, is not about about whether one’s body with will at all. be Organ donation and educational interfered and research uses, on the other hand, are by no means inevitable. Finally, part of the answer seems to lie in what common. treatment of Almost corpses everyone is is most either buried or death, cremated and both after are common, whereas very few of us will ever 252 that it assumes a bodily holder’s interference interests contrary to is the worse whether rights- one’s interests will be than fulfilled. In any event, uncertainty it seems in inconsistent to respect relation posthumous bodily to integrity regarding organ donation, medical regarding the means of disposal. The response traditional to research the and education, uniqueness of anatomical gifts but is that they involve not an altruistic act, but this does not obviously address why the interest in P the death of one or both biological parents. biological or both the death of one 33718-mqe_14-2 Sheet No. 58 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 58 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 59 Side A 07/02/2013 13:56:24 133 SSISTED SSISTED :A HOICES . 1263, 1263, 1265, 253 C 134 TERIL However, this is is this However, . S260, S261 (Supp. 2004) 135 UTURE .&S ,F TERIL ERTIL .&S Postmortem Parenthood and the Need for ROGRESS (The requirement of “clear “clear of requirement (The 1(2007). 1(2007). , 79 F 136 .P ERTIL AW AW M L A of regulation and recommending protocols ) 6/17/2013 1:02 PM , 82 F FOR FOR . ELETE D TR OT ,C N O Frances Batzer et al., Frances As a result, its permissibility, essentially, essentially, permissibility, its result, a As RONS (A bill that would have required consent for for consent required have would that bill (A A 132 . § 145C.10(g) (2012). (2012). 145C.10(g) . § 131 Seealso POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS ECHNOLOGIES AND THE TAT , The Ethics Committee of the American Society for Reproductive T ., Human Fertilisation and Embryology Act, 1990, c. 37, § 12, sch. 3 .MACROS (D .S ESSICA J Posthumous Reproduction INN OUNG Id. See See, e.g. See e.g .Y Although Although there is no general legal right in the U.S. to Posthumous Posthumous reproduction is largely unregulated in the The situation is less clear regarding maintaining a pregnant EPRODUCTIVE UBLISHED Medicine, Medicine, removal, the laws of certain other countries grant such a right depends on the protocols of clinics and hospitals. hospitals. and of clinics protocols the on depends posthumous bodily integrity in relation to posthumous sperm 136. 136. and the ethics literature reproduction-related in interferences with a the corpse should United not be States consent. prior deceased’s the without permitted suggests that only a presumption. Clear and convincing woman’s evidence that the wishes maintaining were her on life support. to the contrary would preclude 131. 131. R 2013] 2013] a fetus. gestating continue to support life on body woman’s United States. P 134. (Eng.); Assisted Human consent). without purposes reproductive for sperm removing proscribing Reproduction Act, R.S.C. 134. 2004, c. L-2 (Can.) (both 132. Assemb. 8043, 1999–2000 Leg., Reg. Sess. (N.Y. 1999). 1999). (N.Y. Sess. Reg. Leg., 1999–2000 8043, Assemb. 132. 133. 135. M 1268 (2003) (acknowledging the lack sperm removal). posthumous consent to or inferred actual would require that 135. a Protocol with Sperm Procurement Posthumous (stating (stating that a request by a surviving spouse for posthumous sperm removal need not be honored). posthumous sperm retrieval was proposed in New York but was York New was but in proposed was retrieval sperm posthumous never enacted.) Care Decisions Act, makes a woman’s Minnesota law provides that a wishes pregnant woman is presumed determinative. to have wanted to be maintained on life support for the purpose of gestating her fetus to the point of viability. woman’s woman’s dead body on life support to enable a fetus to come to term. On the one hand, in such situations, the wishes woman’s prior appear to be example, legally which determinative. is among Minnesota, Uniform Rights of the Terminally Ill the Act or for the Uniform Health- states to have adopted the M K C Y 33718-mqe_14-2 Sheet No. 59 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 59 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 59 Side B 07/02/2013 13:56:24 M K : C Y , as The The REGNANCY per per se 139 P however, however, 137 [Vol. 14 14 [Vol. ORTEM ORTEM (And the same same the (And case, -M 141 OST P 2 Issues L. & Med. 415 (1987). (1987). 415 Med. & L. 2 Issues 347, 347–48 (1999). (1999). 347–48 347, THICS reprintedin ANAGEMENT ANAGEMENT OF Thus, despite no prior (explicit or ) 6/17/2013 1:02 PM .&E azzi 133 (2006). (2006). 133 ,M 138 ED ELETE M D SPECTS OT A N PERLING S O Ethical and Legal Aspects of Sperm Retrieval After Death or , 27 J.L. , 27 ANIEL ANIEL MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE , D .MACROS (D HILOSOPHICAL P University University Health Services, Inc. v. Piazzi . at 416–18. 416–18. at . . at 418. 418. . at OUNG Id See, e.g. .Y The Even when consent is required, it is not clear to what extent . Id 140 139 EGAL AND UBLISHED 138. 138. inconsistency inconsistency with Minnesota law lies not in the outcome but in the fact that irrelevant. That said, the the case has been criticized as both poorly court treated reasoned Donna and Piazzi’s as having wishes reliance on little the as specific pregnancy precedential clause of the value, Natural Death Act. given its 141. Carson Strong, Strong, Carson 141. Persistent Vegetative State develop. develop. She had left no instructions regarding and this her situation husband and family opposed continued The father biological of the life who was child, however, not Piazzi’s support. husband, petitioned for the support. body The court held to that since Donna Piazzi be was dead she maintained had no on constitutional right to life privacy and relying in part on pregnancy a clause in Georgia’s Natural Death Act, it granted the biological father’s petition. suggests a different approach than Minnesota’s. It involved legal a battle in Georgia over whether to maintain Donna Piazzi’s legally dead body on life support in order to allow her fetus to 137. Univ. Health Serv., Inc. v. Pi v. Inc. Serv., Health Univ. 137. 140. 254 and convincing evidence” distinguishes removal, where the presumption posthumous is generally that the sperm deceased did not want to from of reproduce the situation a posthumously, support.) life on woman pregnant P L inferred) inferred) consent to having her body on maintained life support, the court allowed such treatment of her body. bodies of the dead and the reproductive issue. the law aims to protect posthumous bodily integrity 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 33718-mqe_14-2 Sheet No. 59 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 59 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 60 Side A 07/02/2013 13:56:24 255 ) 6/17/2013 1:02 PM ELETE D OT It may, therefore, be that guidelines in in guidelines that be therefore, may, It N O 142 POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D . at 348. 348. . at OUNG .Y As with other laws that grant a right to posthumous bodily On Kramer’s model, the existence of ongoing interests that What is clear is for that requiring consent prior posthumous . Id 142 UBLISHED consent. consent. In that case, the law reassure to as so the living reproduction would posthumous for consent likely still require prior consent. without parents posthumous be not will that they integrity, requiring prior consent, although consistent with the the deceased’s partner’s interest in deceased. having a child with the could ground rights would depend on whether the deceased’s prior wishes regarding posthumous reproduction were known to living people. reproduction without consent If interests cannot they in harm posthumous are bodily the integrity have not deceased’s because none. she known, Any would harm posthumous integrity to would be in an relation to the interests interest of the living, who in posthumous do bodily not want to be posthumous parents without their explicit corpses. corpses. reproduction would protect a integrity in a manner consistent either with the dead or only the right to posthumous living being the bodily rights-bearer. On Feinberg’s of in the treatment interest model an have ongoing would rights-bearer the dead her body and perhaps also in making Prior reproductive decisions. consent should, therefore, be competing required, interests especially since are weaker context, than for example. The competing interest primarily involves in the organ donation relation relation to posthumous reproduction are largely consistent with other laws granting a right However, to given posthumous the bodily lack people rights what say to soon of integrity. too is it law, the of area emerging legislation and case law in have in relation this to reproduction-related interferences with their 2013] 2013] is true regarding interferences with a dead pregnant woman’s body.) He suggests that the former is only problematic absence in the of consent. P M K C Y 33718-mqe_14-2 Sheet No. 60 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 60 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 60 Side B 07/02/2013 13:56:24 M K C Y . § 24-12-4(A) . § 24-12-4(A) . § 24-12-4(A)(1) . § 24-12-4(A)(1) NN NN .A [Vol. 14 14 [Vol. .A TAT In many states, states, many In TAT 145 N.M. S and §§ 4209-a, 4210, 4210-c (McKinney 2012); AW ) 6/17/2013 1:02 PM . 505/2(b) (2012); . (2012); 505/2(b) N.M. S L . § 19a-286 (2012). (2012). 19a-286 § . As in the anatomical gift context, in in context, gift anatomical the in As UTOPSY . 505/2 (2012), (2012), . 505/2 TAT §§ 4209-a, 4210, 4210-c (McKinney 2012). Other Other 2012). (McKinney 4210-c 4210, 4209-a, §§ ELETE A 144 D .S TAT EALTH AW TAT OT .S L N .S OMP .H O EN UB .C OMP .G LL EALTH .C EFUSE AN MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE ONN LL .H R , N.Y. P ,410 I ,410 , C UB .MACROS (D . § 194.115(1) (2012). (2012). §194.115(1) . 410 410 I This may reflect a view that the next of kin has a a has kin of next the that view a reflect may This Some states provide for the deceased individual’s individual’s deceased the for provide states Some TAT 146 OUNG See 143 .S See, e.g. See, e.g. See,e.g. .Y EV Autopsy Autopsy is generally unlawful without consent, subject to IGHT TO TO IGHT R .R O UBLISHED however, however, there is no provision consent. for the individual herself to prior consent or refusal. deceased is In carrying a notarized New card indicating a York, refusal to for be example, dissected or if autopsied, the that must be respected, exceptions noted subject above. to the states have similar provisions in regards to providing prior autopsy. consent or refusal to 145. (2012). 145. 143. 143. better 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 associated kin had rights with and duties the right providing for of individuals to possession legally of refuse own autopsies a body on may their corpse. also simply reflect someone the Not to fact indicate that a refusal it to is be rare autopsied death. before for her own 256 dead having or not having an interest integrity, is easier to justify in on the former view. The interests of posthumous bodily the living in posthumous bodily integrity are implicated either way, but if the dead also have reproduction against the deceased’s such prior wishes amounts to an an interest, posthumous additional, and not insignificant, interference with posthumous integrity. bodily E. P 146. (2012). 146. M certain exceptions related health. to law enforcement and public 144. N.Y. P N.Y. 144. the absence of consent or refusal by the deceased, kin’s the consent next to of autopsy must be obtained. 33718-mqe_14-2 Sheet No. 60 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 60 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 61 Side A 07/02/2013 13:56:24 147 148 USEUMS M OLLECTIONS C 257 ONES ONES IN B USEUM M 149 UMAN H is more controversial controversial more is EMAINS IN R UMAN URROUNDING S H Body Worlds ) 6/17/2013 1:02 PM SSUES SSUES ELETE I D OT ONTESTING ONTESTING NTO N I O ,C . § 327-38(c)(1) (2012). (2012). 327-38(c)(1) . § -type -type exhibits. Most people have no objection TAT EAD .S ENKINS D ESEARCH J POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS EV .MACROS (D .R ONG AW OUNG IFFANY IFFANY L .Y T H Body Worlds Part Part of the reason why I conclude with one context in which posthumous bodily In states like New York, laws requiring for consent autopsy, HE T UBLISHED to the display of the conducted bodies of the in long dead. the approximately 90% In United of a respondents survey claimed Kingdom to be with comfortable by displaying English prehistoric Heritage, human bodies in museums. 148. (2009). 148. (2011). 127 149. than than a museum mummy exhibit may relate to the way in which bodies are displayed. In posed, being made the to appear former, to be bodies exploding or are performing a artistically Evidence Evidence of this acceptance exhibits also of comes human from remains the display law banning Hawaii new that the evidence is Further the are among fact the that most of corpses for commercial purposes excludes popular. the bodies of those years. 80 more than for dead been have who integrity receives very little legal protection: that is, in relation to that is, in to relation protection: legal little very receives integrity the long dead. Museums frequently contain displays of ancient human remains, and these are generally much less controversial than 147. BDRC, R BDRC, 147. how their cadaver how cadaver is their treated. As the always, argument however, for requiring consent is somewhat stronger if the dead and the integrity. bodily in posthumous interest an have both living F. 2013] 2013] like the other laws examined in this section, exemplify a right legal to posthumous bodily integrity. Laws requiring consent the also the living or only with consistent equally are forautopsy dead having an interest in posthumous bodily integrity. living have The critical interests in the including treatment of its their dissection corpse, for survive death, dead individuals would have a similar interest in autopsy, and if those interests P M K C Y 33718-mqe_14-2 Sheet No. 61 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 61 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 61 Side B 07/02/2013 13:56:24 M K , C Y See EUTERS , Sept. 11, , R EUTERS , R [Vol. 14 14 [Vol. preserves bodies for the has no right to the body in the first first the in body the to right no has Body Worlds have all died within the past past the within died all have ) 6/17/2013 1:02 PM The bodies are highly manipulated, manipulated, highly are bodies The Body Worlds om/article/idUSTRE58A4Z220090911. 150 ELETE D Body Body Worlds note 18, at 108–110, for an examination of the long OT N O 152 This can perhaps be explained in part by the Body Worlds Plans Cadaver Show Dedicated to Sex , supra 151 MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE Body Worlds Plans Cadaver Show Dedicated to Sex .MACROS (D PERLING OUNG .Y U.S. federal laws governing the treatment of ancient human However, However, much of the difference in the degree of UBLISHED purpose purpose of putting them on public display, it is insufficient unless it contemplated arguable display. However, that many current donors consent do not would be leave instructions as to how to their display bodies, this “dismissing as vanity.” Jason Rhodes, place place in the absence of consent. Given that fact that fact but there are in that not in corpses rights property dead long ones. dead recently anatomical anatomical gift legislation governs the procurement of corpses recently dead display of the allow the not does exhibits, for these without consent. and other prehistoric human remains are long dead. Not only is no one alive who knew them in culture life, and way but of life in no longer exists. many They cases are truly foreign their to us. It is surely a being 80 years or 80 more, dead years of no those bodies exempts coincidence that the Hawaii legislation 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 Simply one put, knew the in life. law allows the museums display without the individuals’ of prior consent ancient but, assuming corpses in both in terms of the polymers that are introduced into the body display. of manner and the controversy surely relates deceased on display in to the timeline few decades, and many have living involved. relatives. Ancient mummies The remains 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, Rhodes, Jason 150. 258 trapeze routine. One recent controversy even involved corpses posed in sexual positions. P 152. See S See http://www.reuters.com/article/idUSTRE58A4Z220090911. 2009, 152. 151. Strictly speaking it is not display that would be prohibited under under prohibited be would that display not is it speaking Strictly Sept. 11, 2009, http://www.reuters.c 151. anatomical gift legislation. Rather, dead exception to the no property rule regarding human remains. rule remains. human regarding property to the deadno exception 33718-mqe_14-2 Sheet No. 61 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 61 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 62 Side A 07/02/2013 13:56:24 158 Body Worlds 259 Under the the Under 159 The same is true in in true is same The It also provides that that provides also It 157 154 ) 6/17/2013 1:02 PM ELETE provides that Native Americans have D 153 OT Part IV.E. IV.E. Part IV.C. Part Parts IV.A–B. IV.A–B. Parts N O supra supra supra POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D (Although the reality is that any ancient remains remains ancient any that is reality the (Although discussion discussion discussion discussion 25 U.S.C. § 3005(a)(4) (1991). (1991). 3005(a)(4) § U.S.C. 25 156 discussion discussion OUNG See See See See .Y Note that the Act does not require the repatriation of the the of repatriation the require not does Act the that Note A thorough discussion of the law governing the treatment 155 UBLISHED 159. 159. 158. 158. many states regarding autopsy (subject to certain exceptions). so. federal federal institutions in possession Americans must of inventory the them, notify remains the group Native of to American which the Native deceased belonged, if possible, and the return remains to the Native American group if requested to do exhibit exhibit are impermissible without consent. Certainly Certainly cryonic preservation or display in a 155. 25 U.S.C. §§ 3003, 3005(a) (1991). (1991). (1991). (1991). 3005(a) 3001–13 3002(a) § 3003, § §§ U.S.C. U.S.C. 25 U.S.C. 25 25 153. 154. 155. 156. 157. 2013] 2013] Native American Graves (hereinafter NAGPRA) Protection and Repatriation Act P remains remains of non-Native Americans – of example. ancient mummies for the best claim to discovered on the federal remains or tribal of land. Native Americans newly any of the permitted actions. Of course, obtaining consent such is impossible prior in the case of ancient remains, makes and so a it certain amount of descendants. sense However, NAGPRA differs from laws such as to the focus on the UAGA in wishes that of it contains no default rule that no are interferences permitted without the surviving consent family member. Under the UAGA, of a failure to find a the deceased or relative who of can a give consent means medical that research organ cannot donation legally occur. or newly discovered in the United States will U.S. may institutions well federal Americans, be in of possession be those of Native Americans). non-Native of remains ancient of remainsancient is beyond the scope of this but article, 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 M K C Y 33718-mqe_14-2 Sheet No. 62 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 62 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 62 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. 161 ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D 25 U.S.C. § 3005 (1991). triggers obligations but does not necessarily preclude preclude necessarily not does but obligations triggers OUNG .Y 25 U.S.C. § 3001(2) (1991). (1991). 3001(2) § U.S.C. 25 See 160 Thus, laws in relation to the bodies of the long dead do not Another Another difference is that cultural affiliation need not be . 160 UBLISHED display or research on the remains. the on research or display 260 NAGPRA, however, an inability to find a “culturally affiliated” group P when the individual does. respecting people’s We wishes is important not because we owe any have seen that in to the to give confidence we wish because duties but to the dead, that case, 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 requirement requirement to dispose of corpses in example). a NAGPRA appears dignified to reflect manner, a desire to for protect this kind of interest rather than an interest integrity. in posthumous bodily appear to protect an interest in The posthumous bodily theories integrity. of interests of treatment of their own corpses may help to explain why the the law living and the treats the long dead differently than the recently dead regarding dead in the posthumous bodily integrity. bodily If integrity belongs only to the living, those interests an expire interest in posthumous values 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 direct descendants to is decide what happens to the body, for but that those people’s the bodies should be treated in a The culturally law appropriate does way. not appear to protect an individual’s bodily integrity interest – in it protects the cultural descendants’ interests in disposing of their dead according to their own custom. discussed As above, there are laws society that protect in the the interests of dignified treatment of human remains (the based based on genetic or other family ties. Although reliance the on a broader concept of evidentiary cultural difficulties in affiliation proving may a appears also genetic simply to relationship, reflect reflect it a desire to respect cultural traditions, 161. 161. 33718-mqe_14-2 Sheet No. 62 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 62 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 63 Side A 07/02/2013 13:56:24 261 This view derives derives view This For example, dead dead example, For 162 163 ) 6/17/2013 1:02 PM ELETE D OT Part II.D. II.D. Part N note14, at 789–91. O supra supra supra POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D discussion discussion OUNG See .Y However, However, putting ancient corpses on display may be more Non-consensual interferences with the bodies of the long UBLISHED whereas whereas those who According to this approach, it makes sense to are view the interests dead of the – dead as or at leasttime, – diminishing disappearing over and forgotten although have it is none. not clear how this person’s interests remain so actually long as one person remembers works. her? Do a dead people such as one’s grandmother or Shakespeare continue to have interests because they live on in the minds of the living, 162. Smolensky, Smolensky, 162. 163. still placing ancient corpses on display. display. on corpses ancient still placing problematic if the dead of the interests to the taken have approach the on depending integrity, an ongoing interest in dead. bodily According to Smolensky, the interests only of stay the the same over dead time or can diminish. their wishes will be respected, it is easier for us to identify with the recently dead, personally, than with and ancient corpses. We especially may not personally those want our future whom corpses put on we display, but the Egyptian display mummy knew of does not an make us fear that our own regarding wishes our corpses will be ignored. This is not only because we are less able to relate to the ancient the law dead, protects us differently but than it also protects the becauseancient dead. We can, therefore, fulfill the critical interests living in of not having the their future cadavers currently put on display while 2013] 2013] deceased. dead may pose less of a threat to the living with than the interferences recently dead and do not implicate broken Those promises. who exhibit ancient Egyptian mummies, of course, not promise those ancient did Egyptian people that their wishes not to be disturbed would be respected, and so no been promises broken. have In terms of giving confidence to the living that P from Kramer’s theory of interests interests only because, in and to which the extent the knowledge that, dead the of living specific have have deceased people. M K C Y 33718-mqe_14-2 Sheet No. 63 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 63 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 63 Side B 07/02/2013 13:56:24 M K C Y If their their If 164 [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM ELETE D OT Part II.D. II.D. Part N O supra MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D discussion discussion OUNG See .Y If the dead have interests that do not diminish over time, Feinberg Feinberg and Pitcher’s ante-mortem person theory of the An An interesting issue arises, however, in relation to the Since no one now exists who knew the ancient dead UBLISHED interests are of independent people’s knowledge and memory of indefinitely. persist presumably could the they dead, approaches approaches it is not clear that the interests of the dead in bodily their integrity would ever diminish or disappear. 164. bodily integrity than the anonymous dead. question whether interests It can be lost with also anonymity, but then raises the regained if new information comes to light. Suffice it to say that even of the of by theory the interests dead Smolensky proposed of ancient the for treatment fullyour account andcannot Kramer dead because we do not apply different consent requirements to the ancient dead depending on whether they are anonymous or known. in practices and law our with well less even fit dead the of rights relation to the long dead. Recall that according to these human beings, we should treat their bodies with respect (which may or may not argue against their public claim integrity. to bodily any moral have no longer themselves, display), but they, 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 262 Do they diminish in degree deceased is or no longer remembered by anyone? do Regardless, it is they exist fully clear until that according to the Kramer’s theory, the dead will have no forgotten. completely are they interests once Smolensky- a anonymous, are dead ancient most and personally, Kramer approach would suggest that those decedents lost their former As ago. centuries integrity bodily in posthumous interest P 33718-mqe_14-2 Sheet No. 63 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 63 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 64 Side A 07/02/2013 13:56:24 263 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y To summarize, the law treats ancient corpses differently UBLISHED not violate that interest any more in actions non-consensual than relation to the recently dead violate the interest. The difference lies in the need to give the living confidence that will be their respected wishes after death. Since the ancient dead were not, while alive, subject to modern legal regimes, and because we do not as readily identify with recently the dead, ancient treating dead the than ancient with dead the differently does not than than those of the recently dead. The former may be the subject of research or educational display without the permissible is legally conduct No such relatives. her ordeceased consent of the in relation to the recently dead without the prior consent of the deceased or the substitute consent theories underlying of an interest the in posthumous next bodily integrity of provide kin. different explanations for why this may be The the case. If only the living have an interest in posthumous bodily integrity, then non-consensual actions in relation to an ancient corpse do have 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 interest in posthumous to bodily integrity, we outweigh should not the exhibit so is especially This a museum. in corpse mummy’s an Egyptian deceased’s 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. 2013] 2013] 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 weight the over living time, take but on it greater is Extrapolating not from clear Feinberg why this and would Pitcher, be determine we so). what should the seek ancient dead to person would and have respect wanted those wishes absent would the person what determine to we are If unable otherwise. a compelling reason to do P M K C Y 33718-mqe_14-2 Sheet No. 64 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 64 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 64 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. ) 6/17/2013 1:02 PM ELETE D OT N O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D OUNG .Y ONCLUSION If the dead themselves have an ongoing interest in It is often derivethese unclear, however, laws from whether C UBLISHED dead dead are not anonymous, or if we take a view interests that does not require of the dead to live on in the posthumous memory of the living, it is to harder explain why the ancient dead should be granted little or no when the right recently dead have significant to rights in relation to the posthumous bodily integrity interests. same V. 264 threaten people’s confidence that deaths. their after respected their own wishes will be 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 posthumous the interests have ancient expired. However, dead if the ancient are anonymous, their P note, 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, priority within in reason, deciding what individuals happens have to death. their own bodies after a view that the dead, themselves, have sufficient moral status to individuals individuals make many decisions about what will their deadown even bodies, in the face competing of compelling happen to interests, such as those of potential organ recipients. Given the widespread nature of decisions about the treatment of their corpses it could be argued Americans’ right that to a make general binding right although, it to is not my posthumous aim to argue for bodily the existence general right, of integrity especially given such variation between states a on some exists; issues, such as the ability to disposed or decide the ability how to refuse one’s an autopsy. body It will is important be to Laws granting to let appropriate it considers society American that demonstrate a right to posthumous bodily integrity 33718-mqe_14-2 Sheet No. 64 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 64 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 65 Side A 07/02/2013 13:56:24 265 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y Thus, Thus, any conclusions drawn from the structure of these It is impossible to say with any certainty whether the UBLISHED identity identity of the rights-holder. legislator With or this analysis member in of place, whether the dead the are properly bearers a of rights (and if so, public what who has kinds a of view rights) about can balance the make protection of policy posthumous bodily integrity arguments against competing interests in the treatment of a corpse. that By considering properly whose interest in posthumous bodily integrity was being reflect a view that the dead bodily have an integrity, interest in that posthumous in deciding what that should happen situation to families’ members the is corpses entitled interest to of considerable weight, in their or that family a drew law that a distinction on the basis unpalatable. politically be would knowable of whether one’s wishes are laws as to whether the dead are viewed speculative. as rights-holders are However, demonstrate the the moral implications value of with different a interferences of corpse depending the on the exercise approach one is takes to to the bodily integrity. However, the different treatment of the ancient and recent dead is more consistent with integrity. a bodily posthumous in interest an have living view that only the bearers of legal rights to posthumous bodily dead integrity or only the living because: a) legislators appear not to have are the and are b) laws; there in issue the enacting considered explicitly 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 2013] 2013] be deserving of integrity; or they whether derive from a view that the dead have an ongoing right insufficient moral status, but that it is important nevertheless for to posthumous the bodily living to have confidence that their treatment of their corpses will be respected. wishes To the extent that a regarding the right to posthumous bodily integrity whose wishes applies are unknown, this even is easier to to reconcile with the those view that the dead have an ongoing interest in posthumous P M K C Y 33718-mqe_14-2 Sheet No. 65 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 65 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 65 Side B 07/02/2013 13:56:24 M K C Y [Vol. 14 14 [Vol. -type -type displays are undignified. . ) 6/17/2013 1:02 PM ELETE D OT N Body Worlds O MARQUETTE ELDER’S ADVISOR ELDER’S MARQUETTE .MACROS (D Bodies: The Exhibition The Bodies: OUNG .Y In focusing on individuals’ interest in posthumous bodily UBLISHED institute institute bans on public display where it inferred could that the would have deceased as opposed display, is the reasonably be case with 266 protected and why, lawmakers might find ways to increase the supply of donor organs or research cadavers without any additional harm to recognized causing interests. For example, if we agreed that the dead have no interests, we would presumably consider it more acceptable to take the organs of wishes, those while whose alive, are unknown. Alternately, if the dead have do interests, legislators might choose protection to to give greater the legal bodies of the ancient dead. They might P be treated in a certain way, living wants members to be of the a kind society of society that that respects the dead, who living stand people to or from organs benefit donated wishes of the medical research, or living loved ones of the whodeceased have a stake in how the corpse continue to is have a moral treated. stake in the treatment of their If, bodies, however, they the have a claim to a certain kind of treatment even dead if we don’t given given to a right to posthumous bodily integrity when it conflicts with competing rights. Rather, relation to in policy, for and thus conduct, moral for implications it has shown that there dead are bodies that flow from how one posthumous bodily construes integrity. an If the interest dead have in no interests – if they cannot be the proper subject of rights because they do not have sufficient moral status – cannot then harm our the treatment dead. of corpses It various ways, but not the dead. can, If that is the case, then the of only course, hurt the reason to abide by the living wishes of the dead is to in benefit the living – either living individuals who care that their own corpses will integrity, 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 This article has little to say about how much weight should be 33718-mqe_14-2 Sheet No. 65 Side B 07/02/2013 13:56:24 B 07/02/2013 No. 65 Side Sheet 33718-mqe_14-2 33718-mqe_14-2 Sheet No. 66 Side A 07/02/2013 13:56:24 267 ) 6/17/2013 1:02 PM ELETE D OT N O POSTHUMOUS BODILY INTEGRITY BODILY POSTHUMOUS .MACROS (D OUNG .Y Posthumous Posthumous bodily integrity clearly matters, but it is UBLISHED 2013] 2013] corpses. their for wanted actually they what treatment know unclear why. If we could agree as to why it matters, we could enact laws to protect it manner. in Even if we cannot agree, we a can at least be clear about more principled and what consistent it is we are trying to achieve in enacting laws that protect integrity. bodily posthumous P M K C Y 33718-mqe_14-2 Sheet No. 66 Side A 07/02/2013 13:56:24 A 07/02/2013 No. 66 Side Sheet 33718-mqe_14-2