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The Evolution of Decedent Ownership

2019; American Medical Association; Volume: 143; Issue: 9 Linguagem: Inglês

10.5858/arpa.2019-0225-ed

1543-2165

Timothy Craig Allen,

Legal Systems and Judicial Processes

Among the greatest obligations of a pathologist is the requirement that the pathologist, prior to performing an autopsy, ensure that the person or persons with authority to authorize autopsy consent provide the consent for the autopsy. That authority is not limited to autopsy authorization; it extends as well to periautopsy events, including informed consent for a decedent's organ donation and release of a decedent for funeral arrangements. Any autopsy and periautopsy permissions given by persons other than those who are entitled to provide them are invalid and can result in significant discomfort for a decedent's family members, as well as significant legal jeopardy for the pathologist. Typically, state law determines with specificity those persons who can legally provide consent, and pathologists learn and follow these state laws. There is a general assumption that the state laws are appropriate and well considered. But the validity of that assumption rests on a state's adherence to proper legal precedent, itself developed with an understanding of the evolution of decedent ownership. It is important that pathologists have a basic understanding of the foundations for the laws that govern their professional behavior,2 including the laws that govern autopsy and periautopsy consent. That foundation is built on the concept of decedent ownership.Informed consent for a decedent's organ donation, consent for a decedent's autopsy, and consent for funeral arrangements and the final resting place of a decedent's body all depend upon a person's control of the decedent's body. Who owns a decedent's body, and what does ownership mean in this context? The answers have a fascinating centuries-old history, and indeed the concept is still evolving.First of all, what does it mean to “own”? Property is owned, and the concept of property as the right to exclude is well settled. Indeed, “[c]entral to the idea of property is exclusion.”3 For property to have any legitimacy, governments must exist, because “…the essence of property is a state-enforced right to exclude others.”4 Therefore, if a person is able to determine organ donor status, autopsy consent, and funeral arrangements for a decedent, and those determinations are enforced by the state, then it must follow that the person “owns” the decedent. But common sense makes it clear that cannot be true in the context of “ownership” as it is typically understood. One cannot do with a decedent's body anything one wishes, or treat the decedent's body any way one might like; in fact, there are laws against mishandling of a decedent's body. The same state that enforces a person's right to inter a decedent at the cemetery of that person's choice also would disallow and punish that same person's inappropriate treatment of the decedent. This situation contradicts the typical understanding of ownership. So, ownership as it is typically understood cannot be the case here.One way to begin to understand this seeming contradiction is to consider the concept of property as a bundle of sticks.“[T]he right to exclude others” [is] “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”6Besides the bundle-of-sticks approach to ownership, another useful legal tool to consider in the context of autopsy and periautopsy consent is the concept of quasi-property. Quasi-property interests “involve the use of a relational entitlement mechanism to simulate property's exclusionary framework within limited settings.”3 Traditional property law “signal[s] to the world: stay away—this resource is owned.”3 In contrast, a quasi-property right communicates a different message to the world.3 “[I]t merely signals to one party to stay away from an actual or fictional resource only when the two parties stand in a particular relationship to each other, which is in turn activated by certain triggering facts.”3Quasi-property law “consciously avoids the recognition or creation of an ordinary property right in the subject matter involved[,]” here, the body of a decedent; yet “the law nonetheless evinces the belief that there is some value in the idea of imposing a limited duty of forbearance.”3 This limited duty “…is heavily circumscribed by considerations that emanate directly from the parties' actions, interactions, and statuses, and only indirectly relate to the subject-matter in question….”3 And quasi-property law is as legally robust as traditional property law, and may impose liability on actors that breach the duty imposed by it.3Early English common law did not recognize property rights in a corpse. In the 17th century, the human body was considered philosophically to be the temple of the Holy Ghost, and thus, although men left their bodies for a short time at death, it was understood that they would require their bodies when they returned on Resurrection Day.8 As such, giving property rights to someone else was considered wrong. A person was entitled to a decent burial; however, the concept was that people gave their bodies to the earth “not so much [as] a donee as a bailee.”8 (Bailment is the delivery of personal property returnable to the bailor after being held for some purpose.) Hence, while burials were in the jurisdiction of ecclesiastical courts, no property right existed in a corpse.8By the 19th century, courts were forced by several trends to face the issue of whether a property right existed in the decedent's body. First, with geographic growth and movement, familial ties slackened and families grew apart, and cases emerged where the widow and the “next of kin” contested for control of the body.8 Second, medical schools increasingly needed bodies on which to experiment, leading to the businesses of body snatching from graveyards and unauthorized autopsies. Third, families increasingly complained and pursued damages, so courts sought to recognize property rights in the body vesting in the surviving members of the family so that the families could legally request and collect damages. Finally, with the rise of cremation, family members opposing cremation in favor of interment for religious reasons or otherwise challenged the right of the decedent or others to make the decision regarding disposition.8The case law that has developed regarding the rights associated with disposition of a decedent is inconsistent, and reliance on case law remains dangerous for one attempting to impose one's dispositional wishes.8 “[The decedent's] wishes are overcome even though they are expressed orally, or even testamentarily in a written will. Express wishes as to disposition give way to custom, religion, or to a presumption against disinterment.”8 “Although generalizations fail to adequately characterize the myriad of reasons for failing to recognize and follow the decedent's express wishes, one clear historical explanation is that any right to control disposition does not exist in the decedent at all, but in her spouse particularly, and family generally.”8Courts justify their disregard of a decedent's wishes by invoking the doctrine of quasi-property to reinforce that a right to the decedent's body is not a property right. “Beginning in the nineteenth century, common law courts came to characterize some interests that sought to mimic the functioning of property solely as a mechanism of liability, as quasi-property in nature.”3 “Rather prominent among these was a person's right to control the corpse of a dead relative—known as the right of ‘sepulcher'—interferences with which were rendered actionable.”3 The quasi-property right in the decedent's body vests in the spouse or next of kin, and is derived from the courts' understanding of what exercisable property rights may be held by the “owner” of the dead body. Under the doctrine of quasi-property, the next of kin have a right to possess the remains for burial purposes, to oppose disinterment, to refuse autopsy and organ donation, and to seek damages for mutilation of the body of the deceased.8Importantly, the right to possession of the body corresponds with a duty to dispose of the body, which is “in a sense a trust to be exercised for all having affection for the deceased and an interest in seeing the body recently interred.” Courts have reasoned that, out of the right to burial, there arises the duty to bury, and, out of the duty to bury, there arises the quasi-property right.8 From the courts' perspective, clarity regarding the possession of the decedent's body was paramount in order to ensure timely burial. This perspective also suggests why courts have been almost uniformly hostile to enforcing the decedent's wishes regarding the disposal of the decedent's body, as discussed below.An instructive case in this regard is Pettigrew v Pettigrew,9 an early–20th-century case that provided significant clarity to decedent ownership and established the foundations for modern decedent ownership law. Today, where a decedent does not leave a testamentary disposition, the right to dispose of the body is controlled by statutes, many of which mirror Pettigrew's holdings; and in the absence of a statute, most common-law jurisdictions follow the rule of decision-making laid down in Pettigrew. Pettigrew held, first, that “the paramount right is in the surviving husband or widow, and, if the parties were living in the normal relations of marriage, it will require a very strong case to justify a court in interfering with the wish of the survivor.” Second, the Pettigrew court held that where there is no surviving spouse, “the right is in the next of kin in the order of their relation to the decedent, as children of proper age, parents, brothers and sisters, or more distant kin, modified, it may be, by circumstances of special intimacy or association with the decedent.” Finally, the court stated that to what extent “the desires of the decedent should prevail against those of a surviving husband or wife is an open question, but as against remoter connections, such wishes especially if strongly and recently expressed, should usually prevail.”8 But one must ask whether in reality the decedent's wishes really ever prevail.When someone dies, “public policy and regard for the public health, as well as the universal sense of propriety, require that his body should be decently cared for and disposed of. The duty of disposition therefore devolves upon some one, and must carry with it the right to perform.”8 Pettigrew held that the “some one” to exercise the property right was the next of kin. The property right thus vests in the next of kin and can best be understood as arising out of and corresponding to relatives' duty to bury their deceased next of kin. Significantly, these rights, whether classified as quasi-property or a duty to dispose of the body in trust, exist in the surviving spouse or next of kin, not in the decedent.8By the 19th century, testamentary disposition of the decedent's body was occasionally allowed by courts, but it was problematic because a will generally is not probated until after the decedent's burial or cremation has already occurred. As such, unless someone had been aware of, and had made known, the decedent's wishes, the survivors' wishes controlled. Where these wishes contradicted the decedent's, courts typically refused to allow the decedent to be disinterred to carry out those wishes. Further, directions in a will are not beyond challenge by family members, and testamentary dispositions are capable of being changed or rescinded orally without the formalities that destruction of a will requires.8Additionally, the use of the quasi-property doctrine causes problems under the common law for decedents looking for the right to direct the disposition of their bodies as property in a will. Although early in American common law some courts determined that decedents had a right to dispose of their bodies through a will,8 “[t]he right to testamentary disposition of one's own body…has [in fact] been ‘more honoured in the breach than in the observance.'”8 In reality, the decedent's express wishes are almost always defeated, whether they had been expressed testamentarily or orally, because “custom, public policy, religion, the wishes of remaining family members, and failure to act in a timely manner” prevail.8 And disinterment has also been both refused and allowed in contradiction to express wishes.One example of a decedent's express wishes being defeated when included in a valid will even before interment is Holland v Metalious,10 where the decedent attempted in her will to donate her body to science, stating expressly that no funeral service was to be held. The universities to which she attempted to donate her body refused the body, and so her family attempted to bury her and have a funeral service. The Holland court held that because the primary purpose of the will was donation, all other wishes were ancillary to it; and as the primary purpose had failed, the family could have a funeral service despite the decedent's express wish to the contrary.8An example of a decedent's oral wishes, not expressed in writing in a will, being defeated in court is Mitty v Oliveira,11 where the plaintiff, the decedent's wife, presented evidence that the decedent had expressed an oral wish for cremation. The wife had nonetheless allowed the decedent to be buried by the church, whose canons do not allow disinterment. The wife argued that “she had acquiesced in her husband's burial only because she was grief-stricken and influenced by the priests.” The Mitty court held that the wife had “effectively waived her right to enforce his wishes by allowing the church burial to occur.”8Moreover, courts have allowed decedent disinterment in direct contradiction to a decedent's express oral wishes. In Rosenblum v New Mount Sinai Cemetery Ass'n,12 the court held that express statements as to where the decedent wanted to be buried, made in the last months of his life as he faced death, were not competent because of his terminal cancer and arteriosclerosis. The court then allowed the spouse to disinter the decedent in contradiction to his express wishes.8 These cases exhibit just how far courts will go in their reasoning to defeat a decedent's wishes regarding disposition of the decedent's body.In contrast to the predominating legal theory, it has been argued that the simplest way to decide the disposition of a body is to recognize a person's property interest, that survives after death, in his or her own body, letting individuals decide for themselves, in a manner that createsThis “market-inalienable” property right, as it is argued,This property right, belonging to the decedent, would relieve a court of having to balance “a right less than property, vested in the next of kin, against the [decedent's] clearly expressed intent.”8But this argument has not yet carried the day; currently courts continue to recognize a quasi-property right in the decedent's body, vested in the next of kin.As society's mores evolve into and through the 21st century, the issue of autopsy and periautopsy consent will require increased attention by state legislatures and courts. A quarter of a century ago it was noted thatIn addressing this tension, it may be instructive to look back to the early 20th century Pettigrew language, which suggested that “‘[a] more distant relative, or even a friend, not connected by ties of blood, may have a superior right, under exceptional circumstances, to one nearer of kin ….' This caveat to the common law rule appears to provide grounds for a same-sex partner to control disposition; however, [currently] the ‘exceptional circumstances' standard is rarely applied by the courts.”8Although progress is being made in the recognition of same-sex partnerships, other, legal informal partnerships remain a challenge.The issue of decedent ownership continues to evolve. Historical aspects of autopsy necessity and consent, the relationship of secular law and ecclesiastical law, evolving common law, modern social expectations of autopsy, the changing definition of family, and an increasingly litigious society all inform current autopsy regulation. Future legislative and litigation maneuvers regarding autopsy consent will likely address, and hopefully resolve, the current tension arising from the growth of nontraditional relationships.