After We Die: The Life and Times of the Human Cadaver

3. The Legal Status of the Postliving: Do Corpses Have Rights?

45 The postliving have too long been accorded casual treatment. . . . Their names are dropped from voting lists, they are no longer able to apply for or receive credit, and their pension and social security checks are ruthlessly cut off. . . . This treatment is clearly unjust. Why should a change of life status render individuals who had recognized rights into a class of those whose rights now go unprotected? Cynthia Kirchoff-Charles and Susan Feldman “On the Long Neglected Status of the Post Living” The law throws around bodies of deceased human beings a protection even in their graves. In re Ackermann, 109 N.Y.S.2d 228 (N.Y. App. Div. 1908) Chapter 3 The Legal Status of the Postliving Do Corpses Have Rights? On Resolving the Corpse’s Fate Multiple decisions have to be made about the disposition of a corpse. Most immediately, will the body or body parts be made available for use before final disposal—for autopsy, for use in research or education, or for transplantation to live persons with critical needs? What method of final disposal of the corpse or its remnants will be used—burial or some more exotic disposition? Will there be a commemorative ceremony? Will there be a religious rite? Who will speak? Will the body be displayed? How will the corpse be clothed? If the method of disposition is burial, where will the corpse be buried? What kind of container or wrapping, if any, will be used? What kind of burial ceremony, if any, will be held? Rules for prompt resolution of such issues are necessary. Without prompt disposition, the corpse will putrefy or, if embalmed, linger in limbo (the duration of which depends on the extent of embalming) awaiting disposition. Not only should the appropriate decision maker be promptly recognized but the ensuing choice of disposition should be 46 | The Legal Status of the Postliving right the first time. It is impossible to undo some dispositions (e.g., cremation or deep-sea burial), and once a corpse has been laid to rest in some permanent fashion, there is great reluctance to disturb that repose. Disputes about disposal of a cadaver frequently arise, sometimes arousing interest in the media and sometimes prompting judicial intervention . The introduction to this book described the unceremonious fate of Ted Williams’s corpse and the legal controversy in 2002 surrounding its disposition—a legal proceeding that ended (with Williams a frozen remnant) only because his sister ran out of resources to litigate. In 2006 the matter of Teresa Schiavo made headlines. It was not sad enough that Michael Schiavo (her husband) and the Schindlers (her parents) had fought and litigated in the Florida courts for six years over the medical fate of Ms. Schiavo. (She was then a permanently unconscious patient and had survived for fourteen years only because of artificial nutrition and hydration.) Even after detachment of her artificial life support, the contestants fought bitterly over where to dispose of her body. Michael buried Ms. Schiavo in Pennsylvania despite her parents’ preference that she be buried in Florida. In 2007 the disposal of celebrity Anna Nicole Smith’s body was resolved judicially—amid media fanfare—after her executor/lover battled for control of Ms. Smith’s remains against her long-estranged mother. Many other controversies over the disposition of human remains are resolved with less publicity. In 2005 Sergeant Jason Hendrix’s body was returned to the United States after his death in Iraq. Jason’s divorced parents fought over the disposition of the corpse. His mother, who lived in California, contended that Jason had asked to be buried there. His father, who lived in Oklahoma, wanted the burial to take place in that state. Jason had finished high school there and had listed Oklahoma in his army records as his place of residence. A military tribunal resolved the dispute . After a military judge disbelieved his mother’s claim about Jason’s express wishes, the army invoked its handy rule granting custody of a corpse in controversy to the older of the two competing parents. Jason’s forty-eight-year-old father got custody rather than his forty-five-year-old mother. These cases not only pose issues about legal control of a cadaver’s disposition, they also raise the question of whose rights are at stake in disputes over a cadaver’s fate. As shown in the Williams, Schiavo, Smith, Is a Corpse Property...