This viewpoint was upheld in the 1999 decision in R vs Kelly wherein the court held that โwhere a corpse, or part of a corpse, had undergone a process or application of human skill designed to preserve it for medical or scientific examination; it acquired a value and became property for the purposes of the Theft Act 1968โ.[5] This judgment by the UK Court of appeal extended the definition of property and included a corpse within its purview so that a corpse could be under the jurisdiction of the Theft Act, 1968. So now it can be somewhat said that a dead body is indeed a legal entity, does it not need protection from the hands of pharmaceutical and biotechnological research that are focused more on harvesting dead people than maintaining a sensibility towards society? If say a dead or even a dying personโs body is used as a vessel for medical research and their blood enables a company to develop a new drug, does the owner of that blood have any share in the payoffs or does he not deserve any remuneration for his โunwilling and randomโ contribution to science? The law probably does not grant him any benefits due to his involvement being only circumstantial as is also laid down in the case of Moore vs. Regents of the University of California which is considered to be a landmark judgment in this aspect. Spleen cells from a patient undergoing treatment for leukemia were used to create a cell line for treatment which was then patented and commercialized which earned them close to a billion dollars. โOn July 9, 1990, the Supreme Court of California ruled that Moore had no right to any share of the profits realized from the commercialization of anything developed from his discarded body parts.โ [6]
There are other factors too that play a role in determining the interests of a dead person apart from the fact that his corpse is now considered a legal entity. The protection of oneโs privacy and property remains of importance many times. Wrongfully defaming a dead person whose reputation is linked to the deceased and maintaining the intellectual property of the dead person are important issues that need to be considered while disbursing justice โ through judicial processes or legislative. In Georgia Lions Eye bank, Inc vs Lavant, the issue was involving the donation of the cornea by a dead baby without the consent or consultation of the parents but with the consent of only the state medical examiner. The court sided with the parents in their judgment and said that the โimposed consent statute violated the due process in that it deprives a person of a property right in the corpse of her next of kin, and fails to provide notice and an opportunity to objectโ[7]. It goes to show that even the state cannot infringe upon certain rights of a dead person and the interests of their kin and the state, by encroaching on these rights without following the due process cannot escape its wrongdoing[8].
So it goes to show that across jurisdictions, the legal systems recognize that even dead persons have certain rights that should not be infringed upon. A more in-depth evaluation on this subject will create an even more evolved legal opinion on this matter and maybe even legislative measures can be taken to address the rights and to protect the interests of those who are dead.
[1] Indian Succession Act, 1925 (39 OF 1925)
[2] David A. Peters, Protecting Autonomy in Organ Procurement Procedures: Some Overlooked Issues, The Milbank Quarterly (Vol. 64, No. 2 1986) 241, . Available at http://www.jstor.org/stable/3349972
[3] David A. Peters, Protecting Autonomy in Organ Procurement Procedures: Some Overlooked Issues, The Milbank Quarterly (Vol. 64, No. 2 1986) 243, . Available at http://www.jstor.org/stable/3349972
[4] Lawyer v. Kernodle, 721 F.2d 632, 634 (8th Cir. 1983)
[5] R v Kelly & Anor [1999] 2 WLR 384
[6] Moore v. Regents of the University of California (51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479)
[7] Georgia Lions Eye Bank Inc. v. Lavant, 255 Ga. 60 (1985)
[8] Michele Goodwin, Formalism and the Legal Status of Body Parts, University of Chicago Legal Forum (Vol. 26, 2006) 317, . Available at SSRN: http://ssrn.com/abstract=960412
