WHEN THE DECEASED’S WISHES ARE UNKNOWN
When the deceased’s wishes are unknown, the Human Tissue Act 1961 establishes that the family (spouse or surviving relatives) has the right to object to organ and tissue retention and use. How much power the relatives should have is under discussion in UK law (the Human Tissue Bill stresses the importance of obtaining relatives’ consent to the activity,37 whereas the Human Tissue Act 1961 only required that the relatives did not object to it), but generally some decisional power is accorded to the family of the deceased.
The rationale for the power accorded to the family may be:
- Relatives are the best interpreters of a deceased’s wishes—respect for the deceased’s autonomy. In the case of a minor or an incompetent person, the relatives are the best guarantors of the deceased’s best interests.
- Relatives have a right to decide because the cadaver "belongs" to them.
- The relatives’ psychological wellbeing has to be preserved.
Let us analyse these points in turn.
Relatives are the best interpreters of a deceased’s wishes
The idea that we should respect the wishes of those who are thought to be the best interpreters of the deceased’s wishes rests on the principle of respect for people’s autonomy. Those who believe that there is no autonomy to respect will also contend that relatives do not have a right to decide or, at least, that they have not this right based on the principle of respect for autonomy. I have already suggested that this argument is incomplete, because there is a sense in which the autonomy of a person is violated, when something against their post-mortem wishes is done to their body. But even if we accept my argument that the dead body is still in some sense a person, it is still unclear whether the relatives should be entitled to decide on the ground that they might be the best interpreters of the wishes of the person who died.
There are epistemic problems involved in setting up the rules for deciding who "the best interpreter" is. We cannot argue or verify that we have identified who that person is. To put it simply: Who counts as "the relatives"? The Human Tissue Act 1961 mentions "the spouse or any surviving relatives".38 Are they necessarily the best interpreters of the deceased’s wishes? And what if they disagree? Who is the person whose view best reflects the deceased’s? How do we identify this person? (In the Human Tissue Bill, now before Parliament, more specifications are provided as to whom should count as "the relatives".39) This does not imply that relatives’ wishes should not be respected, however, if relatives’ opinion has to count, it should count on other grounds.
The deceased’s body "belongs to the relatives"
Although in common law there is "no property in a corpse",40 the issue of the property of the dead body is a controversial one in UK law. I will not be discussing the legal issues. I will be considering whether there are conceptually valid arguments to maintain that the bodies of the deceased belong to their relatives.
There are two main arguments against the idea that the deceased’s body belongs to the relatives.
- The body is a property of God. In some religions, the body is property of God and therefore nobody can claim that the body belongs to them—not even the person themselves. People are not allowed to do whatever they want with their body: they are not allowed to commit suicide or to sell parts of their body because the body belongs to God.
- The body is a republic. Some people believe that once "I" die, the issue of ownership is irrelevant, because there is no longer any "I", when "I’m" dead. Therefore, I have no right to decide about my body once I’m dead. Although most people consider this view as diametrically opposed to point 1, it is in some way very similar to it. From both points of view, my body is something that "I have happened to use" while my brain stem was alive (in point 1 this idea is generally expressed in terms of "spirit"—"until my spirit resides in it"). Once the brain stem has ceased to function (once my spirit returns to the Creator), "I" no longer exist. If the body does not belong to a dead person, still less does it belong to the relatives. The dead body, this "mouldering casket",41 does not belong to anyone (neither to God nor to the relatives) and therefore belongs to everyone: it is a res publica. Morally, it is worth no more, at least in itself, than the carcasses of cats and rats in the streets. However, this material can be used for research, teaching, and therapeutic purposes. The good uses of these disjecti membra make them valuable, and for these reasons, these membra are a public good.
Points 1 and 2 are in principle incompatible with relatives’ "property rights" over a deceased’s body. From both points of view, relatives cannot claim that the body of the deceased person belongs to them. I contend, however, that there is a sense in which the body of the person belongs to the relatives, and I also contend that they are therefore prima facie entitled to be "in charge" of the destiny of that body.
"As in my breast, and now on the cross, I call you ‘My love’".42
There is a sense in which other people figure in my psychological and ethical universe as "my daughter" or "my father" or "my siblings". Not only are the relevant others "mine" in some psychologically important sense (they are a part of my life, they have relevance in the way my life takes shape, and in the development of my identity)43 but they are also "mine" in some important ethical sense: this "link" or relationship between them and me entails some moral responsibility.
This sense of "belonging" seems to be an essential component of bonds and affection in humans and other animal species.44,45 The possessive adjective "my", which we use to refer to "my daughter" or "my father" is not a merely semantic clause. "My" indicates the sense of "reciprocal belonging", which is an essential part of "love" and an integral part of meaningful human and animal relationships.46 We experience some others (the significant others) as a part of ourselves. Even once the loved person is dead, she or he continues to be, in some important way, "my daughter" or "my father". This person belongs in some sense to the significant others. He or she is still "Jason", "Marie", "Hannah"—"my Jason", "my Marie", "my dear Hannah".
This "belonging" generates some moral responsibilities—it is because she is my child, that I am in charge of her education and upbringing. Likewise, it is because she is my child that I am in charge of her body, or more in charge than others are. Because of our special relationship, I have reason to consider myself as the person who has the strongest entitlement to decide what will happen to her body. The argument that relatives should be asked because "the body (the person) belongs to them" is to some extent correct.
From this it does not follow that the wishes of the relatives should necessarily be regarded. There may also be cases, which go beyond the scope of this paper, in which the interests of the relatives may conflict with the previously expressed wishes of the deceased (cases in which, for example, relatives may be induced to consent or not to object by financial or other means). These may also be cases in which the relatives’ wishes should not necessarily be followed, but I will not analyse this. Here I focus on whether the significant others are entitled to decide about what should be done with the body of the dead based on the idea that that body is in some way theirs. I contend that a deceased person in some relevant sense belongs to relatives and that they (or the significant others) are prima facie entitled to decide. Nonetheless, relatives’ wishes do not have an overwhelming normative force. If the wishes of relatives are not to be followed, it is not because "they are not entitled to be in charge", but because other values override their entitlement. Thus, whether or not relatives’ wishes to refuse donation of tissues and organs should be followed does not depend on whether the body belongs to them: it rather depends, as stated before, on the balance between two different values. On the one hand, the value of the respect for this "entitlement" (which the significant others have to make decisions regarding the dead person) and, on the other hand, other values (the good that can be done to other people with the deceased’s organs and tissues).
The final reason for giving weight to relatives’ wishes could be that their psychological wellbeing has to be preserved.
Relatives’ wishes should be respected to protect their psychological wellbeing47
"Let us cry louder for those who won’t return".42
Some people argue that it is simply irrational to want to bury a body intact—or indeed is any similar form of "morbid attachment" to the dead body. There is something superstitious and fetishist about these practices, and superstition and fetishism cannot be good bases for moral choices.
It is, however, debatable whether the attachment to the deceased’s body is irrational or morbid in the sense that is meant by some philosophers. Funeral rituals are an essential part of the psychological resolution of a loved person’s death. In all societies, and indeed in many other animals’ societies, funeral rituals are performed. The Egyptians mummified the body and offered much tribute to the dead. In some societies the body is burned in a public place, an in others the body is cannibalised. Psychological studies testify the importance of these rituals. Interfering with them is interfering with the way people articulate their loss. This may be extremely distressing and may have a profound impact upon the psychological welfare of the survivors.48
If people’s welfare matters, and it certainly matters to those who claim that corpses should be used for promoting people’s welfare, then the survivors’ welfare also matters. Thus, from this point of view too, there is good ground to seek the consent of relatives.
Again, one might argue that saving lives and promoting advances in medicine are greater goods than the psychological wellbeing of relatives, and that the latter could well be sacrificed in the name of the greater good. Once more the issue of whether consent should be sought hangs on the balance between different values—the welfare of the family and the welfare of third parties and the society as a whole. How should we balance these different values?
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