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.
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?
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.