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Interim Report: Removal and retention of human material
Annex B: Law and Guidelines
Part III: The right to possession of the body and the duty to dispose
The exception to the 'no property' rule, and
the right to possession of tissue removed from the body
Disposal of tissue through burial and cremation
Burial
Cremation
- The accepted legal principle is that there is no property in a dead body. [100]
- The law does, however, recognise a possessory right; the right to take, or to take and keep, possession of the body in certain circumstances.
- If it is necessary for the coroner to take possession of the body for the purposes of his inquiries (this would not be the case where he deals with a case by Pink Form A) he has an absolute right to possession of the body at common law until the inquest is determined. [101]
- Under the 1984 Act, a person is authorised to have possession of an 'anatomical specimen' (which expression includes a body to be used for anatomical examination) [102] if at the time of possession he is licensed to do so under section 3(2)(b), 1984 Act or if he has permission to have possession from a person who is so licensed. The right to possession is for the time period set out in the Act, or such other period as the Secretary of State may from time to time by order specify. When the authority to possess the body for anatomical examination has expired, or when the anatomical examination has been concluded before the authority to possess has expired, no one has the right to possess the body or a part of it, except as is set out in section 5(3)(4), 1984 Act. Those subsections provide, respectively, that possession of a body or a part is lawful only for the purpose of decent disposal, and that possession of a part of a body, the anatomical examination of which has been concluded, is lawful, provided that the person from whose body the part came cannot be recognised by examination of the part, and provided that the possessor is authorised to have possession and provided possession is lawful pursuant to section 6, 1984 Act.
- Subject to these rights to possession the personal representatives of the deceased have a right to possession of the body until it is disposed of, derived from their duty to dispose of it. [103] If the deceased has made a will appointing executors, they have a right to possession conferred from the time of death. If no executor has been appointed, then the person first entitled to apply for a Grant of Letters of Administration (i.e. the right to deal with the estate of the deceased) has the right to possession once Letters of Administration are granted.
- In the case of a child, the duty falls on the parents, [104] and they therefore have a right to possession of the body.
- Subject to the foregoing, hospital authorities appear to be responsible
at common law as the person on whose premises the body lies to arrange
for the cremation or burial of deceased patients, although if no arrangements
were made by them the duty would fall on the local authority.
[105]
The exception to the 'no property' rule, and the right to possession of tissue removed from the body
- The Supreme Court of California held in Moore v Regents of the University of California in 1990 that a person could have no property rights in tissue taken from his body during an operation to which he consented. [106] The Court found that Moore never had any property right in the cells excised from his body. However the Court also stated: 'we do not purport to hold that excised cells can never be property for any purposes whatsoever.'
- In England and Wales, an exception to the 'no property' rule was confirmed in 1998 by the Court of Appeal in R v Kelly. [107] The court found that anatomical specimens which had been preserved, fixed or dissected for exhibition or teaching purposes were the 'property' of the Royal College of Surgeons of England for the purposes of the Theft Act 1968, which has its own particular definition, and were therefore capable of being stolen. Kelly, therefore, recognised an exception to the common law rule that a dead body or part of such a body could not be 'property': the exception is said to apply where the body or part acquired different attributes by virtue of the application of skill, for example, dissection or preservation techniques: in effect, that it becomes something more than merely a body or part of a body. How the act of dissection alone might result in tissue acquiring different attributes is, perhaps, a difficult concept. In Dobson [108] it was suggested that dissection alone did not have this effect.
- In Doodeward v Spence [109] Griffith CJ held that where a person had 'by the lawful exercise of work or skill so dealt with a corpse in his lawful possession that it had acquired some attributes differentiating it from a mere corpse, that person acquired a right to possession of the corpse or part, at least as against anyone who was not entitled to have it delivered up to them for the purposes of burial'. It is noteworthy that, whilst Kelly uses the language of 'property', Doodeward refers to the more limited right to 'possession' rather than ownership.
- Furthermore, although Doodeward is cited as authority for the proposition that there can be no property in a dead body, it did not deal with the corpse of a person who had been born alive, but rather with a still-born two-headed foetus, in which there had been no independent life. (Whilst various statutory provisions recognise the foetus as having interests which must be considered, [110] it is generally accepted that a child attains the status of a legal person at birth. [111] If a foetus is not a person [112] then a still-born foetus is not the body of a dead person. [113])
- The extent of the 'skill' which must be applied in order for a right to possession of (as in Doodeward) or property in (as in Kelly) tissue to vest in the person applying the skill is unclear. In Doodeward the body had simply been placed in spirits, and the dissenting judge stated: 'No skill or labour has been exercised on it; and there has been no change in its character.'
- It is to be noted that in both Kelly and Doodeward the skill applied to the specimens had rendered them valuable. [114]
- In Dobson, the deceased underwent a Coroner's post-mortem during the course of which the pathologist removed her brain and preserved it in paraffin for the purposes of Rule 9, 1984 Rules. The rest of the body was returned to the family for burial. The brain was subsequently disposed of by the pathologist. Peter Gibson LJ considered whether the pathologist's act of fixing the brain had transformed it into an item of property to which the next of kin might be entitled. He concluded that it did not. While ruling that the administratrix and next of kin had no claim to the brain on the basis that it was the property of the estate, the court found that there was nothing to suggest that the fixing of the brain 'was on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or with preserving a human freak such as a double-headed foetus that had some value for exhibition purpose'. [115] It is to be noted that, as the brain had already been disposed of, the administratrix was not asserting the right of possession for burial or cremation purposes. She sued for conversion, and that claim failed on the basis that she did not have an immediate right to possession (or actual possession) at the time of the alleged conversion since letters of administration were not taken out until after the brain had been disposed of. [116]
- Whether the right to call for possession of a body pursuant to the duty to dispose of it extends to parts of the body is unclear. The duty to bury expressed in Williams is a duty to bury the body: 'prima facie the executors are entitled to the possession and are responsible for the burial of a dead body' and 'accordingly the law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried'. This question was not specifically addressed in Dobson, although Peter Gibson LJ expressed the view that no right to call for the brain existed. [117]
- The common law is entirely unclear as to whether each and every part of a body which might be discovered, for example after an accident, or after burial of the rest of the body or every slide and tissue sample in a pathology laboratory following a post-mortem examination, should be regarded as within the definition of 'the body', for the purposes of the duty to dispose.
- If the duty to bury does not extend this far, then it would follow
that neither does the corresponding right to call for possession for
the purposes of disposal. Thus, institutions in possession of archives
or 'banks' of tissue, need not as a matter of law at least, give up
that possession, even if the material has not 'acquired different attributes'.
This appears so, even if the initial separation of the body part from
the rest of the body was itself unauthorised.
Disposal of tissue through burial and cremation
Burial
- Subject to public-health concerns, there is no statutory requirement
for a body to be buried in a properly authorised place, provided all
legal formalities are completed. Nor is there any statutory provision
preventing the burial of a part of a body such as tissue.
Cremation
- Cremation is governed by the Cremation Acts of 1902 and 1952 and the Cremation Regulations 1930 (as amended) and may only occur in an authorised crematorium, (section 1[1] 1952 Act and Regulation 3 of 1930 Regulations).
- It was not until the Cremation (Amendment) Regulations 2000, came into force on 14 February 2000 [118] that legal provision was made for the cremation of parts of a body removed during a post-mortem examination.
Footnotes
100 Doodeward v Spence (1908) 6 CLR 406 Aust HC; Williams v Williams (1882) 20 Ch D 659 [Return to text]
101 R v Bristol Coroner ex parte Kerr [1974] QB 652, Lord Widgery CJ at 659B [Return to text]
102 Section 1(2)(a), 1984 Act [Return to text]
103 Williams v Williams (1882) 20ChD659 [Return to text]
104 R v Vann (1851) 2 Den 325, CCR; Clark v LGO [1906] 2KB 648, 659 and 10 Hals. Laws (4th ed.) para 1017 (we do not set out here the complex law concerning the exercise of parental responsibility but refer to the general law) [Return to text]
105 Secretary of State for Scotland v Fife County Council (1953) SLT 214 [Return to text]
106 (1990) 793 P 2d 479 [Return to text]
107 [1999] QB 521 [Return to text]
108 Dobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority [1996] 4 All ER 474, [1997] 8 Med LR 357 [Return to text]
109 [1908] 6 CLR 406, High Court of Australia (our emphasis) [Return to text]
110 For example, Congenital Disabilities (Civil Liability) Act 1976 [Return to text]
111 C v S and Another [1988] QB 135 [Return to text]
112 In R v Tait [1990] 1 QB 290 a foetus in utero was found not to be 'another person' 'in the ordinary sense', 'distinct from its mother'. See also AG Ref (No. 3 of 1994) [1998] AC 245 [Return to text]
113 It was on this basis that Barton J agreed with Griffith CJ in Doodeward [Return to text]
114 Professor Andrew Grubb, in a commentary predating Kelly, suggests that what matters is not simply what skill is applied, but the purpose for which it is applied. He argues that the key concept is an intention to create a novel item with a use or purpose of its own; 'Property rights and body parts' [1997] 5 Med. LR 110, 114; but is this correct? [Return to text]
115 [1996] 4 All ER 474 at 601 [Return to text]
116 [1997] 1 WLR 596, 600 B-C, 602 C-E [Return to text]
117 [1997] 1 WLR 596, 601H - 602A [Return to text]
118 SI 2000/58 [Return to text]