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Wall, Jesse and Lidwell-Durnin, John --- "Control, over my dead body: why consent is significant (and why property is suspicious)" [2012] OtaLawRw 6; (2012) 12 Otago LR 757

Last Updated: 17 April 2014

Control, Over My Dead Body:

^{Why Consent is Significant (and Why Property is}

^Suspicious)

Jesse Wall* and John Lidwell-Durnin** Introduction

The lawful possession or use of tissue taken from the body of a deceased person requires the prior consent of the deceased or the consent of a relative. The collection of gametes from a deceased or comatose person also requires the prior consent of the progenitor of the gametes, and the posthumous use of gametes that were consensually collected from a (then) living progenitor requires ethical approval for reproductive use of the gametes in the absence of prior written consent.

The primary purpose of this article is to identify the ethical significance of consent as a legal requirement or regulatory consideration for the use of the bodily material of a deceased person. We will begin by discussing the statutory law and common law that pertains to the possession and use of (I) human tissue and (II) gametes of a deceased person. We will outline the prominent role of consent in the law and note the potential for the recognition of property rights in the bodily material of the deceased. We will suggest that (III) it is not possible to identify a normative basis for the legal requirement of consent that is premised upon conventional ethical tools of “autonomy” and “welfare”. By broadening our understanding of the ethical significance of the body, we explain (IV) why consent ought to be a legal requirement or regulatory consideration for the use of the bodily material of a deceased person. We are then also able to explain (V) why the recent application of property law to gametes in other jurisdictions would be an unwelcome development here in New Zealand.

I Human Tissue and Consent

“Human tissue” is used here to refer to “material that ... is, or is derived from, a body, or material collected from ... a body”,¹ including entire organs, human cells and blood² (but excludes embryos and gametes).³ “Bodily material” is used to refer to both human tissue and gametes. As we will explain here, statutory provisions govern the lawful possession and use of human tissue, whilst at common law, the body or bodily material of the deceased has an unsettled legal status.

A Human Tissue Act 2008

Principal amongst the various provisions is the Human Tissue Act

^* Junior Research Fellow, Merton College, University of Oxford.

^{** DPhil Candidate, University College, University of Oxford.}

^{1 Human Tissue Act 2008, s 7(1).}

^{2 Section 7(4).}

^{3 Section 7(2).}

2008 (HTA 2008). The HTA 2008 identifies when consent is required for the extraction, retention and use of human tissue from the body of the deceased. Yet, for a long period, the relatives of the deceased were not afforded the right to consent to the use of the tissue of the deceased by a hospital care institution. As Skegg has explained,⁴ under the (now repealed) Human Tissue Act 1964 (HTA 1964), the “person lawfully in possession of the body of a deceased person”⁵ may authorise the removal of any part of the body for “therapeutic purposes or for purposes of medical education or research”⁶ provided that, after “having made such reasonable inquiry as may be practicable, he has no reason to believe” the deceased person expressed an objection to the use of their body⁷ or any surviving relative of the deceased objects to the use of the body.

There are two aspects of the former legislative scheme that led to public controversy. First, the “person lawfully in possession of the body of a deceased person” at the time when decisions as to the potential therapeutic, educational and research use of the body of the deceased was invariably the hospital care institution.⁸ The person who may authorise the use of the body of the deceased was thus not the surviving spouse or the parents of the deceased, but the hospital.

Although objection to the use of the body, by either the deceased themselves through a prior expression or a surviving relative, would prevent the use of the body or bodily material, the second aspect of the legislative scheme is that s 3(2) of the HTA 1964 fell well short of requiring consent for the use of the bodily material of the deceased. Simply put, a “lack of objection”, especially only after “a reasonable inquiry as may be practicable”, does “not necessarily imply consent”.⁹

Under the authority of s 3 of the HTA 1964, the Green Lane Hospital was able to collect over 13,000 hearts, mostly from children, since the hospital (as the person lawfully in possession of the body) was able to authorise the removal and retention of the bodily material in absence of objection from the deceased or relatives.¹⁰ In the United Kingdom, a similar controversy arose from the practices at Alder Hey Children’s Hospital in Liverpool and the Bristol Royal Infirmary.¹¹

4. PDG Skegg “The Removal and Retention of Cadaveric Body Parts: Does the Law Require Parental Consent?” [2003] OtaLawRw 8; (2003) 10 Otago LR 425.

^{5 Human Tissue Act 1964, s 3(2); Skegg, above n 4, at 429.}

^{6 Human Tissue Act 1964, s 3(1); Skegg, above n 4, at 431.}

^{7 Human Tissue Act 1964, s 3(2)(a); Skegg, above n 4, at 431.}

^{8 Skegg, above n 4, at 432.}

^{9 At 432.}

^{10 At 425–426.}

^{11 See Re Organ Retention Group Litigation [2004] EWHC 644 (QB); AB v Leeds}

^{Teaching Hospital NHS Trust [2004] EWHC 644 (QB); Kathleen Liddell and}

^{Alison Hall “Beyond Bristol and Alder Hey: The Future of Regulation}

^{of Human Tissue” (2005) 13 Med L Rev 170; JK Mason and GT Laurie}

^{“Consent or Property? Dealing with Body Parts in the Shadow of Bristol}

^{and Alder Hey” (2001) 64 MLR 710; Jesse Wall “The Legal Status of Body}

^{Parts: A Framework” (2001) 31 OJLS 783.}

Section 19(1)(a) of the HTA 2008 now provides that the “collection or use of human tissue that is, or is collected from, a body” must be done with informed consent. The required consent must be consent “to that kind of collection or use of the tissue” and not a general assent or agreement to the use of the body,¹² and the consent may be provided by the individual “from whose body the tissue was collected”, a nominated representative, a member of the immediate family or a close available relative.¹³ Exceptions to the requirement of under consent are located in s 20. These exceptions largely pertain to the exercise of powers for the purposes of the maintenance of law and protection of the health and safely of the public, the performance of a postmortem where there is statutory authority under the Coroners Act 2006 or the Health Act 1956, or for the external audit or evaluation of healthcare services. The legislative response to the controversies in the United Kingdom has been similar.¹⁴

B Common Law

Beyond the statutory governance provided by the HTA 2008 and HARTA 2004 (see Part II-A below), the body and bodily material of a deceased person has an uncertain legal status. The presumption at common law is that the body of the deceased person is not an item of property. This common law rule originates from early-18th century case law concerning instances of grave robbing¹⁵ that were primarily concerned with jurisdictional relationship between the ecclesiastical and civil courts.¹⁶ Since graves and the burial of the human body were under the ecclesiastical jurisdiction, and since property actions were only available under the civil jurisdiction, a rule emerged that a dead body is not capable of being subject to theft because “there is no property in the human body”.¹⁷

This “no property rule” has been applied in the United Kingdom and the United States to prevent actions based in property law from succeeding against a physician for his non-consensual use of a patient’s spleen cell,¹⁸ a hospital for the commercial application a gene sequence discovered through the analysis of blood and tissue samples,¹⁹ a university for the retention of a set of tissue samples,²⁰ and a hospital for

¹² Human Tissue Act 2008, s 9.

^{13 Section 31(1).}

^{14 See Human Tissue Act 2004 (UK); Jonathan Herring Medical Law and Ethics}

^{(4th ed, Oxford University Press, Oxford, 2011) at 419.}

^{15 PDG Skegg “Human Corpses, Medical Specimens and the Law of}

^{Property” (1975) 4 Anglo-Am LR 412; PDG Skegg “The ‘No Property’}

^{Rule and Rights Relating to Dead Bodies” (1997) 5 Tort L Rev 222.}

^{16 Skegg “The ‘No Property’ Rule”, above n 15, at 222–229; Mark Pawlowski}

^{“Property in Body Parts and Products of the Human Body” (2009) 30}

^{Liverpool LR 35 at 36.}

^{17 Pawlowski, above n 16, at 36.}

^{18 Moore v Regents of the University of California 793 P 2d 478 (Cal 1990).}

^{19 Greenberg v Miami Children’s Hospital Research Institute 264 F Supp 2d 1064}

^{(SD Fla 2003).}

^{20 Washington University v Catalona 437 F Supp 2d 985 (ED Mo 2006).}

the disposal of the brain of a deceased person.²¹ As we shall discuss in Part II-B below, there is one well-established exception, and one emerging exception, to the “no property rule”.

Although the body of the deceased is not an item of property, the executor may nonetheless obtain a common law right of possession. As recently explained by the New Zealand Court of Appeal in Takamore,²² at common law an executor has a duty to dispose of, or inter, the body of the deceased.²³ The corollary of this duty is that the executor also obtains the right at common law to possess the body of the deceased.²⁴ The right to possess is for the purposes of, or “directed towards”, the “ancillary duty of ensuring a proper burial”.²⁵

II Gametes and Consent

Like human tissue, the storage and use of semen and ova is governed by primary and secondary legislation whilst the status of gametes of a deceased person at common law is also governed by the “no property rule”. However, as we will explain, exceptions to the “no property rule” have enabled some Australian courts to bypass legislative or regulatory restrictions on the posthumous use of semen.

A Human Assisted Reproductive Technology Act 2004

The Human Assisted Reproductive Technology Act 2004 (HARTA 2004) governs the use of reproductive material for assisted reproductive procedures. An Order in Council, made under s 6 of HARTA 2004, provides that a procedure that “involves the use of sperm that was collected from a person, who has since died, who did not give consent to the specific use of the sperm before that person’s death” is not an “established procedure”.²⁶ As a non-established procedure, any such procedure will require approval from Ethics Committee on Assisted Reproductive Technology (ECART).²⁷ The Advisory Committee on Assisted Reproductive Technology (ACART) has issued guidelines under s 37 of HARTA 2004. The Guidelines explain that:²⁸

²¹ Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1996] 4 All ER 474 (CA).

^{22 Takamore v Clarke [2011] NZCA 587.}

^{23 At [199]; Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659; Murdoch v Rhind [1945]}

^{NZLR 425 (SC).}

^{24 Takamore v Clarke, above n 22, at [200]. See also Dobson v North Tyneside}

^{Health Authority, above n 21, at 478, quoting Margaret Brazier (ed) Clerk}

^{and Lindsell on Torts (17th ed, Sweet & Maxwell, London, 1995) at 653}

^{[13-50]: “the executors or administrators or other persons charged by the}

^{law with the duty of interring the body have a right to the custody and}

^{possession of it until it is properly buried”.}

^{25 Takamore v Clarke, above n 22, at [200].}

^{26 Human Assisted Reproductive Technology Order 2005 (SR 2005/181).}

^{27 Human Assisted Reproductive Technology Act 2004, ss 16, 6.}

^{28 Advisory Committee on Assisted Reproductive Technology Guidelines}

^{for the Storage, Use, and Disposal of Sperm from a Deceased Man (February}

^{2000) [2.2]–[2.3].}

• where consent by the progenitor of the semen for “use only a specified person within a specified timeframe” cannot be obtained for the use of the sperm of the deceased progenitor, the procedure requires approval from ECART; and

• “collection of sperm from a comatose or recently deceased person without that person’s prior written consent is ethically unacceptable”.

The posthumous use of semen therefore requires approval from ECART. The ACART Guidelines indicate that where the “collection” is non-consensual, any use of the semen will fail to obtain approval. The Guidelines also indicate that where the semen was consensually extracted but the progenitor did not consent to the use of the semen by a specified person in the event of their death, the procedure will require, and may or may not obtain, ethical approval. Consent for the collection of semen is a requirement for lawful posthumous reproduction, whereas express or implied consent for the use of the semen of a (now) deceased progenitor is most likely to be a principal consideration in ECART’s decision to approve a procedure that uses the semen.

The consensual collection and storage of ova from a living progenitor became an “established procedure” by amendment to the abovementioned Order in Council in 2008. The posthumous use of ova, like the posthumous use of semen, remains a non-established procedure. Moreover, ACART is yet to formulate Guidelines on the posthumous use of ova. It is reasonable to infer that a decision by ECART as to the posthumous use of ova would be guided by the same principles set out by the ACART Guidelines, suggesting that: where consent for the use of stored ova cannot be obtained, ECART may provide ethical approval procedure; otherwise where prior written consent is not obtained for the posthumous collection of ova, the procedure will be ethically unacceptable.

B Common Law

Legislation and regulatory guidelines in the United Kingdom and Australia also require the consent of the progenitor for the use of their reproductive material after their death.²⁹ Despite this, widows of deceased progenitors of semen have succeeded in their claims against healthcare institutions to use the stored semen for assisted reproductive technology in the absence of the progenitor ’s consent. Here we will focus on two recent Australian cases that have applied the exceptions to the “no property rule” to bypass the legislative or regulatory restrictions on the posthumous use of the semen.

1 Exceptions to the “No Property Rule”

As discussed above, the body or bodily material of a deceased person cannot be the subject of property. Yet, in addition to the common law rule that executors can obtain the right to possess the body of the deceased,

29. For an overview, see S Jones and G Gillett “Posthumous Reproduction: Consent and its Limitations” (2008) 16 JL & Med 279.

there are two exceptions to the “no property rule”. The first exception originates from the decision of the High Court of Australia in Doodeward v Spence.³⁰ It was held by the High Court that where a person had “by the lawful exercise of work or skill so dealt with a corpse in his lawful possession that it had acquired some attributes differentiating it from a mere corpse, that person acquired a right to possession of the corpse or part”.³¹ This “work or skill” exception to the “no property rule” has been successfully applied to establish a claimant’s lawful right to possess the body or bodily material of deceased persons in the United Kingdom³² and Australia.³³

The Court of Appeal of England and Wales in Yearworth formulated a further exception.³⁴ It was held by the Court that inadequate storage of semen by the NHS Trust amounted to a breach of bailment and negligent damage to property. Property rights were recognised in the semen on the basis of four main principles, that: (i) “by their bodies, [the claimants] alone generated and ejaculated the sperm”; (ii) “the sole object of their ejaculation was that it might later be used for their benefit”; (iii) the governing legislation “recognises in the [the claimants] a fundamental feature of ownership, namely that any time they can require the destruction of the sperm”; and that (iv) “no person, whether human or corporate, other than each man has any rights in relation to the sperm”.³⁵ Hence, central to the Court of Appeal’s finding that the claimants had property rights in relation to the future use of the semen is the observation that the claimants consensually and (i) intentionally ejaculated the semen for (ii) their own benefit. In sum, although the presumption remains that the body or bodily material is not the subject matter of property, this may be overturned where work or skill has been applied to the material or if the bodily material is consensually extracted from the progenitor, for the sole object of their own therapeutic benefit.

2 Bazely v Wesley Monash IVF

In Bazely,³⁶ the claimant’s partner had stored semen for the purpose of assisted reproductive therapy but died without leaving any written directive about the semen. In the absence of state legislation on assisted reproductive technology, the healthcare institution in possession of the semen sought to follow the Guidelines of the National Health and Medical Research Council. Section 8.4 of the Guidelines directed clinics

³⁰ Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (HC).

^{31 At 414.}

^{32 R v Kelly [1998] EWCA Crim 1578; [1998] 3 All ER 741 (CA).}

^{33 Doodeward v Spence, above n 30.}

^{34 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1; see}

^{Muireann Quigley “Property: The Future of Human Tissue?” (2009) 17}

^{Med L Rev 457; Shawn HE Harmon and Graeme T Laurie “Yearworth v}

^{North Bristol NHS Trust: Property, Principles, Precedents and Paradigms”}

^{(2010) 69 CLJ 476.}

^{35 Yearworth v North Bristol NHS Trust, above n 34, at [45].}

^{36 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118.}

not to “store gametes from deceased or dying persons or from persons in a postcoma unresponsive state ... unless there is a clearly expressed and witnessed directive from the person that gives his or her consent to the use of the gametes”.

It was held by the Supreme Court of Queensland that “both in law and in common sense, [the conclusion] must be that the straws of semen currently stored with the respondent are property, the ownership of which vested in the deceased while alive and in his personal representatives after his death”.³⁷ The Court reasoned that where a person has lawfully applied work or skill to a human body or part “that it has acquired some attributes differentiating it from a mere corpse awaiting burial”, the person obtains the right to possession as a property right.³⁸ As a result, the deceased’s entitlements in his semen were property rights and the partner of the deceased was able to obtain these property rights through the application of s 8 of the Succession Act 1981 (Qld).

The right of a partner to possess and use the stored gametes of a deceased person could follow from the combined application of the “work or skill” rule under Doodeward and the law of succession. That is, provided that the act of extraction is, itself, sufficient in creating a new “attributes” in the bodily material.³⁹ It is also worth noting that, unlike the Australian authorities, the “work or skill” exception in the English common law includes a threshold requirement for a sufficient amount of work or skill that is unlikely to be met by the mere extraction and storage of semen.⁴⁰

The reasoning in Bazley would have benefited from further consideration as to the ratio developed in Yearworth. In applying the Yearworth ratio, it would be possible to conclude that deceased obtained the right to possess the semen because “by their bodies, [he] alone generated and ejaculated the sperm” and “the sole object of [his] ejaculation was that it might later be used for [his] benefit”,⁴¹ and that these property rights were then transferred to the widow through the law of succession. Alternatively, the ratio in Yearworth could be broadened so the partner obtains a reversionary interest to the semen where the “object of the ejaculation was that it might later be used for the benefit of the progenitor and his partner”.

3 Re Edwards

The Supreme Court of New South Wales in Re Edwards⁴² also afforded

^{stored semen the legal status of property which then enabled the widow}

³⁷ At [33].

^{38 At [18].}

^{39 Doodeward v Spence, above n 30, at 414.}

^{40 See Dobson v North Tyneside Health Authority, above n 21, at 479; R v Kelly,}

^{above n 32, at 746; Rohan Hardcastle Law and the Human Body: Property}

^{Rights, Ownership and Control (Hart Publishing, Oxford, 2009) at 113–116.}

^{41 Yearworth v North Bristol NHS Trust, above n 34, at [45].}

^{42 Re Edwards [2011] NSWSC 478.}

of the deceased to obtain possession of the semen. The crucial difference between the extraction of semen in Re Edwards and the extraction in Bazely is that in the former case the semen was extracted from a comatose patient by court order. A situation similar to Re Edwards had arisen earlier in the United Kingdom in Ex parte Blood and was eventually resolved through the application of the widow’s rights to receive medical treatment in a European Union state under arts 59 and 60 of the European Community Treaty.⁴³

Re Edwards concerned the application of s 21 of the Assisted Reproductive Technology Act 2007 (NSW). Section 21 prohibited the “supply” of semen to another person without the progenitor ’s consent.⁴⁴

By viewing the claim as the assertion of the right to the possession of property as against the healthcare institution, the Court was able to describe the transfer of possession as a “release”, “relinquishment” or “surrender” of the semen rather than a “supply” of the semen.⁴⁵ As we will explain, this reasoning is unsatisfactory.

The Court held, with reliance upon the reasoning in Re Gray, that the widow had a right to possess the bodily material of the deceased as the corollary of the duty to inter.⁴⁶ Yet, the Supreme Court of Queensland in Re Gray explicitly limited the right to possession “only for the purposes of ensuring prompt and decent disposal”.⁴⁷ In contrast, the widow in Re Edwards obtained general rights of possession that were acknowledged to encompass the right to use the bodily material for reproductive therapy.⁴⁸

Hence, the general rights of possession recognised in Re Edwards cannot follow from the limited right to possess the body of the deceased as recognised in Re Gray.

What is curious about the reasoning in Re Edwards is that in order to describe the transfer of possession as a “relinquishment”, it is necessary to rely upon the claimant’s right to possess the body and bodily material of the deceased (as the corollary of the duty to inter). Yet, the Court also held that the widow had a right to the semen that “extends beyond that which she would have as administrator” of the estate.⁴⁹

The basis for the decision must therefore stem from the other common

⁴³ R v Human Fertilisation and Embryology Authority, ex parte Blood [1997] 2

^{All ER 687 (CA); R v Human Fertilisation and Embryology Authority, ex parte}

^{Blood [1999] Fam 151.}

^{44 Assisted Reproductive Technology Act 2007 (NSW), s 21: “An ART}

^{provider must not supply a gamete or an embryo to another person}

^{(including another ART provider) except with the consent of the gamete}

^{provider and in a manner that is consistent with the gamete provider ’s}

^consent.”

^{45 Re Edwards, above n 42, at [139].}

^{46 Re Gray [2000] QSC 390; Re Edwards, above n 42, at [41]–[42].}

^{47 Re Gray, above n 46, at 390. See Loane Skene “Proprietary Interests in}

^{Human Bodily Material: Yearworth, Recent Australian Cases on Stored}

^{Semen and Their Implications” (2012) Med L Rev 227 at 237.}

^{48 Re Edwards, above n 42, at [110].}

^{49 At [90].}

law rules discussed in the judgment. The Supreme Court in Re Edwards also relied upon the rule in Doodeward, finding that the semen had the status of property because of the application of work or skill rule in extracting and storing the bodily material. Moreover, it was asserted that the semen became property of the widow because the semen was extracted “for her purposes”.⁵⁰ Since the “work or skill rule” provides a basis for the applier of work or skill to obtain the right to possess bodily material, the basis for why the widow obtained the right to possess and use the semen must be because it was removed “for her purposes”⁵¹ and the application of work or skill was applied vicariously “for her benefit”.⁵²

However, the semen was removed following a court order as an interim measure.⁵³ To say that it was “for her purposes”, rather than removed for the purposes of a later judicial determination, is to presume that she had the right to the semen when it was extracted despite the fact that the semen was extracted in order for the court to determine whether the widow had a right to the semen. The application of the “work or skill” exception in Re Edwards lends itself to circular or self-referential reasoning.

Bazely and Re Edwards are of interest because of the application of property law as a device to circumvent legislative or regulatory restrictions of the use of gametes in the absence of consent from the progenitor of the gametes. We now turn to consider the ethical significance of consent and the significance of departing from the “no property rule”.

III Consent, Autonomy and Welfare

The practice of organ retention at Green Lane Hospital resulted in what Skegg describes as, “some very predictable ‘bioethical’ comment” where it “was often assumed that if parental consent was not given, the retention was ethically and legally objectionable”.⁵⁴ Similar views were also expressed in the wake of the controversial practices at Alder Hey and Bristol Infirmary, where it was asserted that “respect for the dead” necessitates “respect for their wishes” and in the absence of the deceasing having expressed a view, “the views of the family should be given serious consideration”.⁵⁵

⁵⁰ At [91] [emphasis added].

^{51 At [91]; Skene, above n 47, at 237.}

^{52 Skene, above n 47, at 237: “if a court authorises the removal of bodily}

^{material from a person for later use by another person, that may provide}

^{the basis for the tissue becoming property by work or skill performed for}

^{the purposes of a particular person by an agent.”}

^{53 Re Edwards, above n 42, at [14].}

^{54 Skegg, above n 4, at 425, citing Sharron Cole and Michael McCabe “Green}

^{Lane Library: Ethical and Cultural Implications” (2002) 3 NZ Bioethics}

^{Journal 4; D Gareth Jones and Kerry A Galvin “Retention of Body Parts:}

^{Reflections from Anatomy” (2002) 115 NZ Med J 267.}

^{55 Sheelagh McGuinness and Margaret Brazier “Respecting the Living Means}

A similar assumption prevails in ethical analyses of posthumous use of gametes. In an informative discussion of posthumous reproduction, Moore poses the question: “on what basis does consent have ethical significance?”⁵⁶ Although Moore suggests that consent or dissent ought to be ethical factors in the permissibility of posthumous reproduction, he takes “no view” on the ethical significance of consent and rather relies upon “an intentionally vague notion of ‘respect’ as the basis of consent”.⁵⁷

^{Other commentators also presume, as a starting point, some notion of}

^{“reproductive autonomy”58 or a “posthumous freedom to procreate”.59}

Yet, it is difficult to fortify the assumption that the absence of consent makes the use or retention of bodily material ethically objectionable. As some have argued, “the notion of interests surviving death is incoherent, as there is no one who can be harmed at the point that any wrongful setback of interests occurs”.⁶⁰ Harris, for instance, argues that only “relatively weak” and non–“person-affecting” interests persist in a person’s deceased body.⁶¹ According to Harris, “respect for persons has two distinct dimensions ... respect for autonomy; and ... concern for welfare”.⁶² Harris argues that none of these interests persists after the death of the person:⁶³

autonomy involves the capacity to makes choices, it involves acts of the will, and the dead have no capacities – they have no will, no preferences, wants nor desires, the dead cannot be autonomous and so cannot have their autonomy violated.

Moreover, there is no doubt that the use of the body and bodily material of the deceased person in pursuit of therapeutic, educational and research aims is morally valuable. For instance, the donation of an organ prolongs the life of another person, the retention of organs furthers techniques in surgery, the study of tissue has led to scientific discoveries that have saved lives and elevated suffering, and the availability of gametes enables the “reproductive autonomy” of another.

Respecting the Dead too” (2008) OJLS 297 at 315.

^{56 Andrew Moore “Postmortem Reproduction, Consent, and Policy” in}

^{William Atkin and John Haldane (eds) Philosophy and Its Public Role: Essays}

^{in Ethics, Politics, Society and Culture (Imprint Academic, Charlottesville,}

^{2004) 105 at 113.}

^{57 At 113–144.}

^{58 Belinda Bennett “Posthumous Reproduction and the Meanings of}

^{Autonomy” [1999] MelbULawRw 13; (1999) 23 MULR 286.}

^{59 Carson Strong “Ethical and Legal Aspects of Sperm Retrieval After Death}

^{or Persistent Vegetative State” (1999) 27 JL Med & Ethics 347.}

^{60 Ernest Partridge “Posthumous Interests and Posthumous Respect” 91}

^{Ethics 243; David Price “Property, Harm and the Corpse” in Belinda}

^{Brooks-Gordon and others (eds) Death Rites and Rights (Hart Publishing,}

^{Oxford, 2007) 199.}

^{61 John Harris “Law and regulation of retained organs: the ethical issues”}

^{(2002) 22 LS 527 at 548.}

^{62 At 530.}

^{63 At 531.}

Given the value of the use of bodily material for therapeutic, educational and research purposes, the question arises as to why such valuable activities should be constrained by the requirement of consent. Even if we are solely concerned with maximising welfare and minimising distress, the retention and use of bodily material without consent may also be ethically permissible given the consequences of prolonging life and elevating suffering. To prioritise the “sensibilities” or emotional response of the relatives of the deceased at the expense of the lives of those who could benefit from the retention and use of bodily material has been described as “nothing short of outrageous”,⁶⁴ to the extent that Spital and Taylor argue that the removal of cadaveric organs for transplantation ought to be a routine practice that bypasses the need for consent on the basis that “when one can save an endangered person at little or no risk to oneself, rescue is morally obligatory”.⁶⁵

The challenge therefore arises to identify an ethical basis – that extends beyond concepts of autonomy or welfare – for why consent ought to be a legal requirement, or at least a regulatory consideration, for the lawful collection, retention and use of tissue and gametes of a deceased person.

IV Consent, beyond Autonomy and Welfare

In this section we aim to contrast two attitudes towards the body in order to show just how these attitudes should inform our attitude towards the moral position of the dead body. For ease of reference, we will refer to these views as “cognitivism” and “embodiment”. By cognitivism, we mean those theories of personhood that identify a person with a certain mental capacity to reason and/or conscious awareness of pain and pleasure: theories that regard the individual as being identical to the “central processing unit” or cognitive ability of the brain.⁶⁶ By

⁶⁴ John Harris Wonderwoman and Superman: The Ethics of Human Biotechnology (Oxford University Press, Oxford, 1992) at 100: “If we can save or prolong the lives of living people and can only do so at the expense of the sensibilities of others, it seems clear to me that we should. For the alternative involves the equivalent of sacrificing people’s lives so that others will simply feel better or not feel so bad, and this seems nothing short of outrageous.”

⁶⁵ A Spital and JS Taylor “Routine Recovery of Cadaveric Organs for Transplantation: Consistent, Fair, and Life-Saving” (2007) 2 Clin J Am Soc Nephrol 300 at 303.

⁶⁶ Leaving aside the metaphor of a central processing unit, the idea that we are identical to a form of higher processing in the brain has been endorsed by cognitive scientists cum philosophers. See Peter Carruthers “The Illusion of Conscious Will” (2007) 159 Synthese 197; Fred Dretske Naturalizing the Mind (MIT Press, Cambridge (Mass), 1995); Ned Block “Consciousness, accessibility, and the mesh between psychology and neuroscience” (2007) 30 Behavioural and Brain Sci 481. Underpinning the prevalence of agreement that the self is a form of higher-order brain processing is the belief that were the contents of my brain to be erased and transported to another body, I would move with that information, rather than remain in the physiological matter that makes up by body.

embodiment, we mean theories that identify the person with the body in its entirety, so that no parts of the body are regarded as external to or arbitrarily related to the person.⁶⁷ It is our contention that the above attitudes toward the requirements of consent are often argued with a background cognitivist assumption. Our goal is to demonstrate that embodiment offers us a moral landscape that takes into account morally valuable, “intentional ties” that obtain between individuals, ties that do not necessarily disappear upon death.⁶⁸

A Cognitivism and Autonomy

Harris provides an excellent example of how a cognitivist position informs one’s understanding of autonomy. For Harris, autonomy requires that (a) the individuals in question be capable of exercising rational will. Harris also upholds that (b) concern for one-another ’s welfare is a necessary condition for autonomy to flourish.⁶⁹ Concern for welfare, it would seem, may be extended to humans that lack autonomy, yet it would seem that this class of humanity are only in the sphere of personhood on an honorary basis. This is because they certainly do not qualify for Harris’s steep requirements for autonomy: for being treated as individuals that have “the ability and the freedom to make choices that shape [their] lives”.⁷⁰

There is nothing so unusual about Harris’s views. If they seem

See Bernard Williams “The Self and the Future” (1970) 79 Philosophical Rev 161. Here, we are treating any view towards the person as cognitivist insofar as that view treats the body as external to the essential components that constitute the individual, whatever those components might be (immaterial thoughts, brain matter, or mere patterns of brain activity).

⁶⁷ The idea that we are essentially embodied took its modern form in the work of French phenomenologist Maurice Merleau-Ponty (see Maurice Merleau-Ponty The Phenomenology of Perception (Colin Smith (translator), Routledge, London, 2003). Thus, we will be focusing here upon the phenomenological tradition of debate about the relationship between the living body and the world, rather than theories of embodied cognition that have grown recently popular within cognitive science.

^{68 See Hubert L Dreyfus “The Return of the Myth of the Mental” 50}

^{Inquiry 352. “Intentional ties” is a way of speaking of the sense-laden or}

^{meaningful relations that obtain between our feelings, thoughts, desires,}

^{and comportment, and the world in which we abide. The classic definition}

^{of intentionality comes from Edmund Husserl, who declared that}

^{consciousness is always consciousness-of. By contrast, a strong behaviourist}

^{studies the purely causal relations between external stimuli and muscle}

^{twitches. The proponent for intentionality upholds that our relationship}

^{to the world is not that of stimulus and response. What distinguishes a}

^{form of life from a mere machine according to the phenomologist, is that}

^{living beings are responsive to the significance that the world presents}

^{in terms of their well-being and projects.}

^{69 Harris, above n 61, at 530: “We need welfare ... because [it] create[s] the}

^{conditions which not only maximise autonomy, but also give autonomy}

^{minimal scope for operation” [emphasis added].}

^{70 At 530.}

controversial, that is only because we do not often follow, as Harris has done, what consequences a strong cognitive attitude carry in regards to the status or non-status of the individual. The foundational idea expressed here is that, as Hershenov expresses it, a person is identical to a mental capacity possessed by the brain, and that person only exists at those times when that capacity is operative.⁷¹ This viewpoint already introduces a type of divide between brain and body, leaving the person on the brain side and thus raising the possibility of that person’s identity and persistence being non-dependent upon (the rest of) her body.⁷²

Let us be clear what the outcomes are of the cognitivist position before we move on. These are: (1) autonomy is a condition for consent; (2) autonomy requires a certain cognitive capacity to be operative on the part of the individual; (3) in the absence of this capacity, there is no autonomy, and thus the dead body is a “surplus resource”;⁷³ and hence, (4) there is no need for consent to be given in treating upon the body for the good of others. If we assume the cognitivist position, we end up in a scenario where the dispute over consent is a dispute over which parties get to determine the fate of a resource, the dead body. If so, the application of the law of succession and the rights of executors of estates would be appropriate.

What we hope to show is that the dispute over consent is in fact not over the fate of a surplus resource, but is dispute over intentional relations to the deceased, chiefly the emotive and empathic ties that obtain between individuals. To put it another way: there are morally significant intentional ties that are operative between the living and the just deceased, and to ignore these intentional ties is to cause a personal harm.

B Embodiment and Intentional Ties

As we have seen, one view of the person is that we are rational minds that connect to the world by means of thought alone (with some physiological machinery serving as a go-between). Here, we offer an alternative view that is premised upon two observations by Merleau- Ponty. The first is that “we are through and through composed of relations to the world.”⁷⁴ What is meant by this observation is that a person is a bundle “intentional ties” with the world: sets of attitudes, comportments, beliefs, desires, plans and projects that “intend” the world. These “intentional ties” represent a wider category than the ability to make deliberative, conscious or autonomous choices. The second observation is that “the body is the subject of perception”.⁷⁵ Before anything else, we

⁷¹ David Hershenov “Do Dead Bodies Pose a Problem for Biological

^{Approaches to Personal Identity?” (2005) 114 Mind 31.}

^{72 At 31–59.}

^{73 TM Wilkinson “The Confiscation and Sale of Organs” (2007) 13 Res Publica}

^{327 at 328.}

^{74 Merleau-Ponty, above n 67, at iv.}

^{75 At 240.}

are essentially embodied. In other words, it is not possible to understand ourselves, or others, without reference to our body, or the body of others.

These two observations are observations as to what constitutes our existence as persons, and these observations identify ethically significant features of our body that go beyond our cognitive ability. Hence, by viewing ourselves as embodied, we cease to intellectualise our relationship to the world and others, and can come to recognise that there are ethically relevant features of human experience beyond those enumerated by cognitivism. Our aim below is to single-out two important features that the intentional life of the body is composed of. The first is that the body is the medium of social experience (the body-for-others) and the second is that the body is project-orientated (the body-for-itself).

1 The Body-for-Others

If we are identical to our bodies, then society too is identical to the interaction of our bodies. Think of your body as being the vehicle of your awareness whilst, at the same time, your body is putting work into sustaining the interpersonal cues and responses to interactions with others. Let us give some clear examples to explain what we mean by that assertion. As Merleau-Ponty writes:⁷⁶

Inasmuch as I have been born and have a body and a natural world, I can find in that world other comportments with which my own are interwoven.

Long before a human being ever acquires the concept of “person” or “mind” and applies this concept both to herself and to others, her body has established a wide array of motor responses that mirror the behaviours of others. It has long been observed that these pre-rational responses occur as well in the bodies of adults. We can find prime examples for this claim in mutual affect regulation in infants. As Merleau- Ponty notes, infants, shortly after birth (Taylor Carman cites cases of within 42 minutes of birth), are capable of imitating the facial gestures of persons.⁷⁷ The mere visual stimuli of certain gestures lights up the neural pathways in the infant that yield the same gesticulation. But mutual affect regulation does not merely cause babies to stick out their tongues when a well-intentioned adult begins making faces at them. Peter Hobson, in his study of mutual affect regulation, believes that there is good reason to believe that infants also perceive emotional states by adopting them.⁷⁸ If you ever wondered why your infant, though it has no knowledge that your hard drive has just crashed, seems equally as upset and agitated as you are, that is because your infant perceives your agitation by becoming, herself, agitated.

⁷⁶ At 410.

^{77 Taylor Carman Merleau-Ponty (Routledge, Abingdon (UK), 2008) at 135.}

^{78 R Peter Hobson “What Puts the Jointness into Joint Attention?” in Naomi}

^{Eilan and others (eds) Joint Attention: Communication and Other Minds}

^{(Oxford University Press, Oxford, 2005) 185.}

What significance do these discussions of flinching, tongue-sticking- outing, and mutual agitation have to the question of the significance of consent? We rehearse them here to show that the body is not merely incidental to our cognition and awareness and to show that our cognition and awareness cannot ever be directly observed or experienced by others. Rather, at the physiological level, our bodies employ a host of natural gestures and expressions that find themselves mirrored in the bodies of others. To be close to someone is not a matter of two isolated minds forming an intellectual bond. Rather, by the time that we find we share common interests with someone, our bodies have engaged in a pre-conscious responsiveness to one-another that decides how close we stand to one-another, who is agitated or happy or upset.

The contrast between the cognitivist perspective and the embodiment perspective illustrates a tendency to draw a line internal to the body that puts our rational-level relationships to others on the “me” side and the pre-rational, bodily-level relationships to others on the “physiological” side. Thus, we run the risk of saying that the lower-level intentional relationships that we bear to one another (even the foundational intentional relationships that we bear to one another) are not ethically relevant. Yet it is at this the lower-level that makes perception of one-another ’s moods, feelings, and emotional states possible. The embodiment perspective aims to keep the pre-rational, or lower-level, interaction betweens bodies within the ethical picture.

2 The Body-for-Itself

To be embodied is also to be “temporally extended”. This simply means to have a future, and to be oriented towards the future. Practicing the piano, working on a relationship, writing a thesis: projects are how we orient ourselves towards the future. Further, projects are essentially embodied. Whatever it is we are doing with our lives, our bodies are bringing it into shape. That is all to say, that the body is also for-itself: it is how we engage in the world.

Most projects clearly terminate when we die. The body of the yoga student is pervaded by the project of learning yoga but the death of the yoga student puts an end to the project. Equally, we cannot learn to read posthumously, our efforts to learn Rachmaninoff will one day cease, and our project to be good citizens is likely to expire at death.

However, other projects may not expire at the point of brain-stem death. Rather, there are cases where we enlist our bodies in projects, the aims of which extend after our own death. At one extreme, a martyr may use her body to fulfill a project through her death. The brain-stem death of the martyr does not frustrate the project but completes the project. Less extreme examples include a researcher who dedicates her life’s work, as well as her dead body, to the understanding of a particular medical condition. Her body continues to contribute to the project after her death. Consider also a pregnant woman who dies but remains on life-support. Her body may continue to engage in her project of biological parenthood through three trimesters of gestation despite her brain-stem death. These

examples are intended to illustrate that, from a embodiment perspective, the body may continue to engage in projects – continue to be for-itself – even after the brain-stem death of the person.

C Embodiment, Death and Consent

The cognitivist position on death is absolute: the body no longer sustains any conscious experience, and it no longer has an ethical dimension. What we hope to have shown here is that the embodiment view ensures the persistence of the moral value of the just-deceased body. The body may persist, in a very limited sense, to be for-itself insofar as some projects involving the body extend beyond death, and the body may persist to be for-others in a very limited sense, insofar as the body continues to count as social medium for those yet living.

1 Consent and the Body-for-Others

Let us return now to the question of consent. There are important senses in which pre-rational motor responses can become person-specific, by which we mean that in the course of our relationships, our bodies can become better and quicker at responding to the cues of one individual. We already are perfectly aware that these hierarchies of intimacy exist: our bodies put hard work into establishing and sustaining them, and it is our awareness of them that makes us instinctively insist that we have power of consent over friends and loved ones. If we are cognitivists, then interpersonal relationships necessarily involve “a meeting of minds”, and all of the pre-rational communications that obtain between us are ignored as mere physiology. Yet, when a person’s mental life is extinguished, the body of the deceased does not simply cease to be present for us. At the pre-rational level, the body-level intentional relations are still operative, and it is the pull of these ties that provide the motivation for insistence that the, albeit dead, body still matters as a person.

The relationship between a mother and her son is not severed by the death of the son; rather the relationship between the mother and her son is through their bodies as the physical medium of interaction and this interaction continues for the mother even after the brain-stem death of the son. To ignore these morally significant intentional ties is to ignore the relationships that constitute not only experience of the person but their existence as a person. To return to Merleau-Ponty’s two observations, if we are “composed of relations to the world” and if the “body is the subject of perception” then the power of consent, we would suggest, ought to lie with the individual(s) that remain “intentionally tied” to the body of the deceased. Which is why s 19 of the HTA 2008 confers on a member of the immediate family or a close available relative the right to consent to the retention and use of the body of the deceased.

2 Consent and the Body-for-Itself

From a congnitivist perspective, we restricted the bounds of respect to those wishes and actions that were within the bounds of rationality and/ or conscious awareness. In contrast, if we adopt the view that persons are essentially embodied, then we widen the scope of respect for the

person. From an embodiment perspective, all the life of the body is the life of a person, and when we adopt this view, a crucial change occurs: we observe that even in the absence of conscious self-awareness, the body may persist in carrying out or engaging in a project.

Since certain projects may extend beyond death insofar as they involve projecting a part or the total of the body beyond death in some practical role (contributing to scientific understanding or being a biological parent), so too does our respect for the person. According to this view, their wishes as to the use of the body, such as the donation of organs, retention of tissue, or use of gametes are ethically significant in an analogous way to the significance of a person’s consent or objection to a bodily intrusion whilst they are alive.

If our respect for the person is concerned with their “intentional ties” with the world (their projects and relationships) that help constitute their existence as a person, our for respect for the person must extend to respect to their projects that continue after their death. Such projects may include the use of their body for scientific or therapeutic use, a place or method of burial or the use (or non-use) of their reproductive material to be (or not to be) a biological parent. Hence, the deceased’s wishes as to the use of their body ought to be treated as at least relevant in considering the treatment and use of the deceased body. Given the ethical relevancy of consent, it is now possible to endorse Moore’s position, that consent or dissent ought to be ethical factors in the permissibility of posthumous reproduction.⁷⁹

V The Problem with Property

The contrast between congnitivist and embodiment perspectives has a further pay-off. That is, if we adopt the embodiment view of the person, the application of property law to body or bodily material of the deceased appears to be inappropriate. Alternatively, if we view the body as a mere resource that a conscious and autonomous mind at some point occupied (cognitivism), then the application of the law of bailment, succession and negligence to bodily material may be apt. As we have seen, the “no property rule” has kept the law on the bodies of deceased persons free from property law concepts (except where the bodily material was the subject of work or skill). The decisions in Yearworth, Bazely and Re Edwards represent the potential for property law to apply to the possession and use of the bodily material of a deceased person. Let us briefly articulate why we contend that we ought to be suspicious of property law.⁸⁰

^{What all property rights have in common is that a property right can}

^{“exist independently of the rights-holder”.81 In other words, our property}

⁷⁹ Moore, above n 56, at 113; see also Jones and Gillett, above n 29, at 279.

^{80 See Jesse Wall “The Trespasses of Property Law” (2012) J Med Ethics}

^{(forthcoming).}

^{81 OBG v Allan [2007] UKHL 21 at [309]: “The essential feature of property}

^{is that it has an existence independent of a particular person: it can be}

rights are “only contingently ours” and “we must show why” an item of property is ours “because it might well not have been”.⁸² Consider the following example: Paul has property rights in his wine collection and his art collection. Paul can transfer these items of property to Peter,⁸³ and Peter can “stand in essentially the same position as [Paul]” with regards to the wine or paintings.⁸⁴ Equally, if Peter were to unlawfully acquire the wine and art collections, Paul is “still the same person” despite Peter ’s interference with Paul’s rights.⁸⁵ When we replace the wine collection and art collection with Paul’s personal information and bodily integrity, a very different relationship between Paul and his rights emerge. In essence, Paul’s right to privacy and bodily integrity are necessarily, and not contingently, associated with him.

Since property rights are rights that exist independently of the person, the involvement of property law in the use and retention of bodily material is, from a embodiment perspective, concerning. This is because property law is the law of “surplus resources”: things that we are contingently associated with us. However, as we have suggested here, the body and bodily material of a deceased person retains two ethical dimensions that are dependent on the particular relationship between the person and their body (the body-for-itself) and the relationship between the body and another persons (the body-for-others). These particular relationships may be between a person and their stored gametes or between a parent and the body of a deceased infant, or any other of the morally significant “intentional ties” we form. In any case, it is our contention that it is inaccurate to describe this relationship as a property relationship.

Yet, in the United Kingdom and Australia, bodily material is being treated as an item of property. Moreover, as we saw in Bazely and Re Edwards, the impetus to recognise property rights in the bodily material of the deceased is to bypass regulatory or legislative requirements of consent. We suggest that neither of these two developments would be a welcome developments in New Zealand.

bought and sold, given and received, bequeathed and inherited, pledged or seized to secure debts, acquired (in the olden days) by a husband on marrying its owner.”

^{82 JE Penner The Idea of Property in Law (Oxford University Press, Oxford,}

^{1997) at 111.}

^{83 Stephen R Munzer A Theory of Property (Cambridge University Press,}

^{Cambridge (UK), 1990) at 47: “Personal rights are ... rights that protect}

^{interests or choices other than the choice to transfer. Property rights are}

^{rights that protect the choice to transfer.”}

^{84 Penner, above n 82, at 113; Wall, above n 80.}

^{85 Penner, above n 82, at 113.}

^Conclusion

In essence, the HTA 2008 and HARTA 2004 represent a “consent paradigm”⁸⁶ for the lawful collection, possession and use of bodily material. The primary purpose of this article has been to explain why there is a sound normative basis to the requirement, or consideration, of consent with regards to the use of the bodily material of a deceased person. We have provided this explanation with reference to a contrast between two views of the body: “cognitivism” and “embodiment”. We have argued that it is only through adopting the latter view that is it possible to understand the current “consent paradigm”. The contrast between these two views has also enabled us to advance a secondary thesis: that is, to express concern as to the application of property law to resolve disputes as to the use of the bodily material of a deceased person. The “property paradigm”⁸⁷ is not only problematic as it can be used to circumvent the requirement of consent; it is also the inappropriate paradigm. This is because property law concerns rights in resources that are independent of us, whereas our body, or the body of our loved-ones, is something that is intimate to us.

⁸⁶ Mason and Laurie, above n 11, at 727.

^{87 At 727.}