The Good Funeral Guide Blog

Habeas corpse

Thursday, 17 May 2012

 

An email flies in from a consumer advocacy org in the US. It’s about a British funeral consumer, let’s call him Jim, who has asked them for help. Jim has been told by his funeral director that there will be no funeral until he pays most of the bill upfront. Jim can manage much of the bill now, and can pay the balance very soon, but his funeral director won’t budge and the funeral is just days away. So Jim appoints another, more reasonable, funeral director, who rings up FD1 and says he’s coming to collect the body. FD1 refuses to release it.

What, the consumer advocacy org wanted to know, is Jim’s legal position?

I responded with the standard spiel. The executor/administrator is the legal ‘possessor’ and ‘controller’ of the body and it is an offence for anyone except the coroner to withhold the body from that person. Further, there being no property in a corpse, it is illegal to arrest one for debt. What’s more, it is almost certainly lawful to exercise reasonable force to gain (or regain) lawful possession of the corpse.

This applies, of course, whether or not the consumer has entered into a contract with the funeral home. A dead person cannot be used as a bargaining chip, and the executor can take their dead person home whenever, within reason, and as often as they want. I’m almost certain that’s right. 

And then my mind wandered sideways. For a long time I have wondered what it is legal and what it is illegal to do to a dead body. What constitutes what Americans classify ‘abuse of a corpse’?

And I wondered also about something else that’s been bugging me for a while: what status does routine embalming confer upon a body?

Having more pressing, urgent and duller things to do, I went a-googling. This time, I put in my thumb and pulled out a plum. Actually, two plums.

Plum One

The law case that altered the legal maxim that ‘the only lawful possessor of a corpse is the earth’ was the Anthony-Noel Kelly case. He is an artist. In 1998 he exhibited casts of body parts which had been smuggled out to him by lab technician Niel Lyndsay from the Royal College of Surgeons. Both were arrested and charged with stealing human body parts.  At the trial, the defence submitted at the close of the prosecution case that (i) parts of bodies were not in law capable of being property and therefore could not be stolen, and (ii) that the specimens were not in the lawful possession of the college at the time they were taken because they had been retained beyond the period of two years before burial stipulated in the Anatomy Act 1832, and so did not belong to it. The trial judge rejected those submissions, ruling that there was an exception to the traditional common law rule that there was no property in a corpse, namely that once a human body or body part had undergone a process of skill by a person authorised to perform it, with the object of preserving it for the purpose of medical or scientific examination, or for the benefit of medical science, it became something quite different from an interred corpse and it thereby acquired a usefulness or value and it was capable of becoming property in the usual way, and could be stolen. The same applies to body parts “if they have acquired different attributes by virtue of the application of skill of dissection and preservation techniques for exhibition and teaching purposes“.

There we have it. “Preservation techniques for exhibition … purposes.” Does this apply to bodies embalmed for viewing? After all, they have undergone a process of skill.  If Jim’s detained dead person has been embalmed, can his dead person now be classed as property?

Plum Two

The second discovery comes from a case before the European Court of Human Rights in 2007. Briefly, two men were killed in a firefight with Turkish security forces. When things had died down, members of the security forces cut the ears off the corpses.  The applicants complained of violations under Article 3 of the Convention on Human Rights, which prohibits torture, and “inhuman or degrading treatment or punishment”. The court’s judgement was that it appeared that the deceased’s ears had been cut off after they had died. Article 3 had never been applied in the context of respect for a dead body. Human quality was extinguished on death and, therefore, the prohibition on ill-treatment was no longer applicable to corpses; notwithstanding the cruelty of the acts concerned in the instant case. It followed that there had been no violation of art 3 on that account.

I don’t want to speculate on the implications of that.

 

Information source here.

 

6 comments on “Habeas corpse

  1. Monday 21st May 2012 at 6:08 pm

    Appalling.

    Twice in recent years I have taken over funerals from larger firms and encountered this sort of thing. In one case the (corporate) FD really messed us around, refusing to release the body until we had paid them upfront for a removal neither the family nor we had authorised. Who exactly they thought was their client I don’t know. These idiots bought shame on themselves and the profession.

    The more recent case was similar. A nursing home called ‘the usual’ (corporate) local FD without the consent of next of kin. The family then asked us to make funeral arrangements. In this case, after several stressy yes/no telephone conversations, the body was released to us only after payment of an inflated removal and storage fee. They too behaved shamefully.

    Good grace could be the only thing you can do for a family who choose another FD when the deceased is in your care.

  2. James

    Monday 21st May 2012 at 10:31 am

    Interesting but disturbing that they would not release the deceased.
    I have always practised that should a family change their FD, for whatever reason, we should retire gracefully from the arrangements giving the other FD every assistance. So for example if a time has already been booked at a cemetery or crematorium then we would just transfer it over to the new FD.
    If a family is experiencing financial difficulties then charging more makes no sense plus holding them to ransom is unreasonable and insensitive.

  3. Friday 18th May 2012 at 5:34 pm

    That’s appalling!

  4. Friday 18th May 2012 at 8:48 am

    We have also often been in this position, and the way one corporate sour graped fd got their revenge was an inflated pick up/storage bill. I have heard of a fd involved in a similar custody exchange “accidentally” dropping the body on the cardboard coffin. Nasty.

  5. Thursday 17th May 2012 at 8:39 pm

    Most things are black and white – except the grey bit in the middle! Similar experiences.

  6. Thursday 17th May 2012 at 10:59 am

    Very interesting, Charles, thank you.
    We have beenin a very similar position to this (which is to say we have been in the position of collecting from another funeral director after a family had changed their mind for reasons not unsimilar to the ones you describe. Fortunately the first funeral home were perfectly accomodating although they gave Keith some dirty looks. It hadn’t actually occurred to me that they might not…or how we might have dealt with that!

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