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The South Atlantic Quarterly 100.4 (2001) 1005-1027

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The Rights of the Dead:
Autopsies and Corpse Mismanagement in Multicultural Societies

Alison Dundes Renteln

There have been many culture conflicts over the dead, despite the widespread belief that the dead deserve to be treated with respect. 1 Culture conflicts over corpses give rise to lawsuits because there are myriad beliefs and practices about the proper methods for the disposal of dead bodies based on different conceptions of "the body" and of the afterlife. 2 Although numerous disputes center on death traditions, this topic has received scant attention. 3 Since death is part of any group's way of life, the customary rules associated with this crucial rite of passage merit further investigation. 4

It is precisely this relationship between the dead and the living which requires close examination. 5 In some cultures the dead have rights that the living are obligated to protect. To determine whether the courts have handled the cases appropriately, one must first come to terms with the question of whether the dead have rights. 6 In philosophical terms, one might ask whether the dead have "personhood," are autonomous in any sense, and have juridical status in their right. 7

In the common law, decisions about the disposal of the dead are usually made by ascertaining [End Page 1005] the wishes of the surviving spouse, next of kin, or the decedent's express wishes while alive. The implication is that only the living have the authority to make decisions concerning human remains. 8 This may be a matter of practicality because it is difficult to ask the dead their preferences after they have "passed on."

Anglo-American law generally has not regarded the corpse as the relatives' property. The traditional view is that it is nullius in bonis or no person's property. 9 It is also an established principle of law that the living relatives ("next of kin") have what is called a "quasi-property" interest in the disposition of the body. 10 The relatives have this right because of their duty to bury the dead. 11 When they sue for damages for unlawful mutilation of the corpse, the action is based not on harming the corpse but on causing psychic injury to the living relatives. 12

According to societies that consider the dead to be persons, the rights of the dead must be protected as well as those of the living relatives. Whether one is concerned about the rights of the living or of the dead, it is my view that when families challenge decisions made regarding the dead, the utmost care must be given to cultural factors.

Of the many culture conflicts involving the dead, a large number concern the performance of autopsies despite religious objections by ethnic minority groups. The autopsy is used in forensic medicine, a field that involves the scientific application of medical techniques to legal investigations. 13 The medical examiner or coroner ordinarily conducts an investigation if there is a suspicion of foul play or concern about a public health threat. 14 Overall, the medical community in the published literature on the subject takes an extremely pro-autopsy position. 15

Despite the generally positive view of autopsies in the medical community, some legal systems have traditionally maintained limits to its usage by requiring consent. 16 In the United States the general rule is that the surviving spouse or the next of kin is legally empowered to "grant or deny authority for an autopsy." 17 When families have religious objections to necropsy, the question is whether their refusal to authorize autopsies will be respected. 18 In other cases, if an unauthorized autopsy occurs, the family may sue for monetary damages.

Mutilation of the dead is proscribed by many groups, 19 including the Hmong, 20 Jews, 21 Mexican Americans, 22 Muslims, 23 and Navaho (or Dine, the group's preferred nomenclature). 24 The worldview of these groups often [End Page 1006] includes a belief that a person enters the afterlife with the body in its condition at...