Wednesday, January 22, 2014

The Rights of the Dead

by Sherry F. Colb

In my Verdict column this week, I discuss the case of Marlise Munoz, a young woman who is pregnant and who, tragically, collapsed almost two months ago and is currently being sustained on life support in a Texas hospital.  Munoz's family has asked the hospital to remove her from life support, in deference to what they understand to have been her wishes.  The hospital, however, has refused to withdraw life support, citing a Texas law that prohibits the withdrawal or withholding of life support from a pregnant patient.  In my column, I analyze some ways in which the dilemma posed by Munoz's situation differs, both legally and morally, from the dilemma posed by the termination of an unwanted pregnancy in ordinary circumstances, and I draw some conclusions about the implications of those differences for Munoz's case.

Because -- by some reports -- Marlise Munoz has already been declared brain dead, I turn my attention in the post to the more general issue of rights to bodily integrity on the part of the dead.  Under existing law, if a person prefers not to donate any organs or tissue after she dies may be buried or cremated or otherwise laid to rest with her organs intact.  This means, among other things, that even when there is an organ shortage and people who might otherwise have lived will die without a transplant from a suitable donor, the government lacks the power to take organs from a potential donor who, prior to her death, did not consent to donation. In fact, as I have discussed elsewhere, the legal presumption, in the absence of evidence one way or the other, is that people have refused to donate their organs post-mortem.

One way of thinking about this approach is to say that our bodies belong to us, both in life and in death, and we have the right not to share them with anyone else, no matter how helpful such sharing would be or how necessary to save lives.  By respecting people's right to refuse to donate organs upon death, then, we are showing respect for each individual's dignity rather than viewing people instrumentally, whether alive or dead, as organ donors.

One difficulty with this view is that dead people are quite different from living people, and we do appear to make a variety of demands of the dead in the interests of the rest of the population, demands that we seemingly would not make of the living.  One example is that we require people to dispose of their dead in particular ways regarded as consistent with the public health.  This means that even if John Doe makes known while alive that he would like his remains to be kept in the trunk of his car in his garage for eternity, his dead body will nonetheless be removed from that trunk and either buried in a cemetery, cremated, or otherwise handled in accordance with the law, notwithstanding his contrary wishes.

One response to this reality, though, is to suggest that failing to bury or cremate or otherwise "process" the dead poses a threat to other people's health and wellbeing; at the very least, it creates a nuisance.  While an individual has the right to maintain his or her bodily integrity, then, even after death, he or she does not have the right to create hazards for others, including the sorts of infections that could spread as a result of leaving a rotting corpse in a garage.  And this is not just true of the dead.

A living person too must observe limits on his or her behavior when those limits guard the public health or safety.  This is why people with a virulent infection could potentially be lawfully quarantined to prevent a contagion.  Donating organs, by contrast, is a very different matter, one might argue, because being buried or cremated intact does not pose a "threat" to others who need an organ any more than living a long life (and not donating organs) poses such a threat.  Using or wasting something that belongs to us does not generally constitute a threat to others.  The difference between burial and organ donation, then, is the distinction between a prohibition against harming others and a right not to aid others, a distinction that applies to the living and to the dead.

Perhaps a better analogy, we might say, is to autopsies.  If police suspect that a dead person may have been the victim of a crime (and in various other circumstances), then the medical examiner may perform an autopsy, even over the objections of the decedent's family members (or the expressed intention of the deceased).  In this case, burying or cremating the body of the deceased without an autopsy does not pose a threat to anyone, much as bury or cremating a body without donating its organs does not pose a threat.  The autopsy is instead a governmental use of the decedent's body to help solve the crime and thereby exact retribution on behalf of the state or perhaps prevent the perpetrator from committing similar crimes against others.  An autopsy, in other words, represents a way in which the decedent affirmatively aids others -- both the government and potential victims, and not a manner in which the decedent is stopped from harming others.  Does the autopsy requirement not prove that dead people, unlike the living, lack the right to refrain from helping others avoid harm?

The answer is maybe not.  When it comes to the court system, the distinction between aid and non-harm becomes blurry, even for the living.  If you witness a crime or a civil wrong, a party to a lawsuit or a criminal prosecution can subpoena you as a witness, and you must testify if you have personal knowledge bearing on the case.  There is a Fifth Amendment exception to this principle for people whose responses to questions are self-incriminating, but otherwise, none of us actually has the right to remain silent, and if our testimony is relevant and we are called as witnesses, we may be legally forced to testify with the threat of being fined or jailed for contempt.  We may also be forced to appear for jury duty against our will, another affirmative obligation imposed on the living.

What are we to take from this?  It does seem that our system currently and consistently respects the bodily integrity rights of the dead to a degree that is substantially similar to the ways in which our system respects the bodily integrity rights of the living, and that includes placing limits on those rights when the court system (including police investigation) is in play.  One reason for respecting the rights of the dead may be religious -- many people believe that there is a life of sorts that follows death, and we therefore extend to people the right to control the disposal of their remains as though their bodies continued to belong to someone animate even after death.

Another reason for respecting the rights of the dead may be the worry that if we demand organ or tissue donations, there could be a perverse incentive on the part of treating physicians to err on the side of declaring a person whose organs are needed to be dead.  Many of us have heard horror stories about people who were supposedly dead and ready to be taken off life support and then, seemingly miraculously, woke up.  We would not want to bring about more of those situations.

Ultimately, however, I remain concerned about the autonomy we give ourselves over our dead bodies, even in the face of the compelling interest in organ transplants.  Even as people have the right to insist on having their usable organs decompose in the ground, moreover, we utilize the organs of sentient nonhuman animals for transplant -- including pigs and cows -- for transplantation, as though they are mere commodities to be used to satisfy our needs.  Of course, killing an animal for an organ transplant that would save a human life is far more understandable than killing an animal to consume his or her flesh or secretions (which not certainly not life-saving for the human).  Yet if we treated humans' dead bodies instrumentally, in this one limited way, we would be showing greater respect for the lives of the humans who need organs as well as showing regard for the animals whose organs ought to belong to them,, not to us.


egarber said...

In your column, you basically say that forcing a woman on life support to continue a pregnancy makes her an incubator controlled by the state, and that comes with troubling implications.

But suppose doctors were to remove a pre-viable fetus or embryo and implant it into another woman who could continue the pregnancy. (I'm no doctor, but I'm guessing this is possible in at least some situations).

Is the state's interest in pre-viable life enough to allow that solution, which wouldn't make the initial mother a continuing instrument of the state? Or from a liberty standpoint, is that similar to harvesting an organ without the woman's stated will?

Joe said...

Embryos in a very early stage of development can be implanted (so we hear talk of 'frozen embryos') but other than that, I am not aware of some ability to do that sort of transplant at this time.

The potential is there in the future & Leslie Cannold in her book raised the possibility of artificial wombs. Her conclusions was that most women (including those "pro-life") are very uncomfortable with the idea of their embryos or fetus being taken from them. See, "The Abortion Myth," which I found a compelling work.

But, it could raise different types of questions than the case at hand.

Paul Scott said...

The thing is, you have an incubator. In fact, you have something that is no longer anything other than an incubator for that child and a potential organ donor.

I understand Sherry's position based on standing legal precedent, but the substantive outcome advanced could not be more wrong.

The dead themselves clearly have no interests at all. So the only interests left are the interests of the living: 1. people who are living and want their wishes for their body honored and 2. living family members.

To both of those, on a substantive policy matter, I would say too bad. The countervailing interests of other living beings - those needing transplants and, in this case, a living fetus - far far outweigh any interest the living might have in the disposal of a body.

There are plenty of close cases out there, but this is about as far from that as they come. I caveat that Sherry is certainly right in her balancing of current legal rules, but all of those current rules are very wrong headed. The conclusion from this case should not be that what we do in other circumstances demands will kill the fetus here; the proper conclusion should be that the facts of this case should make us call into question how we treat the rights of the dead in other circumstances.

Joe said...

"The dead themselves clearly have no interests at all."

Why is it so "clear" that the dead themselves have no interests "at all"? Are we talking legal interests here? Moral interests? I have repeatedly, including as expressed in religious and fictional works, read of people believing otherwise.

The interests of the dead also are of the living as suggested. This was noted in the less serious attorney/client privilege context:

Again, it does not seem that clear that things weigh easily against the claim here. Reference to the 'living fetus' is interesting. If the woman was able to, she could abort. Because the fetus is not deemed fully a person that is 'alive" in a full sense. Reports are that the fetus in fact is malformed.

So, her autonomy before would allow her to refuse treatment even if it would lead to the fetus dying along with her. Also, she isn't actually "dead" -- if she was, the matter would be moot. There is forced life support.

How does a fetus that if she was able to choose could be aborted or die with her "far far outweigh" the autonomy issues here? As to transplants, well that is major brave new world / Robin Cook medical thriller waiting to happen.

I disagree that it is 'far far' not outweighed to avoid a body, without consent of the person or suitable third party agents like the family, being kept on life support to be harvested for parts.

We need to at least note the logic of the claim. If she can be kept on life support for that reason against the will of her family, why do we need to sign organ donor cards? Lack of consent would be 'far outweighed' by some little girl who needs my kidney.

Use of humans as means is philosophically problematic in a vacuum. When it involves forced life support (thus the ironical use of "living" to apply to a non-viable fetus but not to the woman) for "those needing transplants," don't we need more than the "too bad" comment?

Joe said...

ETA: The OP notes that Marlise Munoz is "brain dead." In other writings, Prof. Colb has shown some support with using brain functions as a judgment as to when to draw the line as to abortion. Scientific evidence at this time suggests the level of consciousness to draw that line might occur near or past the current viability line. The fetus here at the start of this tragedy was at about sixteen weeks. Even now, it is very unclear if the fetus passed the line. It is therefore w/o balancing everything else unclear if the fetus is "brain alive" shall we say.

Saying a lot, I will rest there. I appreciate the other discussions, including the one I disagreed with.

Paul Scott said...

The religious interests to which you are referring are interests of living practitioners of the religion. Once dead a person cannot have any interests. We can create legal fictions proclaiming they have interests, but as they no longer exist it is impossible for those interests to be true.

The facts about the possible abnormality of the fetus don't change any of that. That is an independent issue. It may well be that the correct choice is to abort the fetus - and therefore terminate the life support.

Her autonomy prior to death is not relevant. There are lots of things we all get to do every day on account of being alive that the dead don't get to do.

"We need to at least note the logic of the claim. If she can be kept on life support for that reason against the will of her family, why do we need to sign organ donor cards? Lack of consent would be 'far outweighed' by some little girl who needs my kidney."

I agree completely. She (and everyone else) should be forced to donate her organs upon death. If artificial life support is otherwise justified, that should be required as well (it may, or may not, be financially viable). The interests of a little girl needing a kidney do far outweigh whatever the desires of her family for the disposal of the body. This too, is not a close call.

That is why I agree completely with Sherry's analysis, but disagree only with the conclusion.

The use of humans (or non-humans) as a means does indeed raise significant philosophical and moral problems. The use of dead humans (or non-humans) really does not. Depending on the intended use, there may be health concerns, public nuisance concerns, etc. But there are zero philosophical or moral concerns stemming per se from the use a dead body in the same way that there are no such pe se concerns from the use of a lump of coal.

Patrick S. O'Donnell said...

Paul, You might want to re-consider the claims in your last paragraph regarding "zero philosophical or moral concerns stemming per se from the use a dead body in the same way that there are no such pe se concerns from the use of a lump of coal." Cf., for instance, these two posts from Taunya Banks at Concurring Opinions last year: and

Joe said...

I appreciate the reply. The reply honestly takes things to a logical conclusion. It isn't the conclusion that is currently found in the law today. So, e.g., we actually do have organ donation authorizations.

The hypothetical "best practices" rules are interesting to contemplate but I'm not surprised Prof. Colb worked w/in the rules in place now.

The reply compares use of the dead with usage of a lump of coal. I'm sorry. Seriously? That is a stance to take, okay, but it just is not the one shared by the public at large now. Thus, e.g., we have laws protecting graves that are stricter than coal dumps.

The dead "can" have interests. You can label those who think they have interests "believing religious things," but the law can grant them interests. It is a judgment to say they have "no" legal interests. It might even be a question of fact -- if souls do exist, e.g., the person still "exists" on some level.

The reply therefore assumes something that is quite open to debate. When perhaps a majority believe that persons in some fashion survive after death or very well might, only more so.

Paul Scott said...

To consider just one of the examples (happy to explore all, but I'll start with the easiest), isn't the real moral issue involving Henrietta Lacks what was done to her while she was living? Had that treatment not been so uncaring by the profession that continued to use her "immortality" wouldn't the story be completely different? Is it really the non-permissive use of her posthumous tissues that is of any real interest in her case?

The existence of a soul is in no meaningful way "open to debate." It has all the force of logic and argument as my position that my apple tree is actually the creator of the universe. One (but not both, as my apple tree insists that souls do not exist) might be true; but neither can reasonably be said to be "open to debate." At least not in any sense other than a debate between 3-year olds (e.g. "Is" "Is not" "Is!", etc.)

Patrick S. O'Donnell said...

Paul, I don't think that is the "real" issue (and neither did Professor Banks), although it is of course a troubling aspect of the case and is not unrelated to the post-mortem issues.

In addition, not a few religious traditions (and even some nonreligious groups: 'Honouring the Ancient Dead (HAD) is a British Neopagan advocacy group working within Britain for the dignified treatment of human remains of British pagan provenance'*) have beliefs regarding what happens to the dead person immediately after death (and some, long afterwards: cf. the disposition of cases involving the disturbed burial remains of American Indians) and we, rightly I believe, accord them recognition and respect, whether or not we agree with the metaphysical assumptions and beliefs of such traditions.

* Cf. the following from the World Archaeological Congress: The Vermillion Accord on Human Remains

1. Respect for the mortal remains of the dead shall be accorded to all, irrespective of origin, race, religion, nationality, custom and tradition.

2. Respect for the wishes of the dead concerning disposition shall be accorded whenever possible, reasonable and lawful, when they are known or can be reasonably inferred.

3. Respect for the wishes of the local community and of relatives or guardians of the dead shall be accorded whenever possible, reasonable and lawful.

4. Respect for the scientific research value of skeletal, mummified and other human remains (including fossil hominids) shall be accorded when such value is demonstrated to exist.

5. Agreement on the disposition of fossil, skeletal, mummified and other remains shall be reached by negotiation on the basis of mutual respect for the legitimate concerns of communities for the proper disposition of their ancestors, as well as the legitimate concerns of science and education.

6. The express recognition that the concerns of various ethnic groups, as well as those of science are legitimate and to be respected, will permit acceptable agreements to be reached and honoured.

For what it's worth, I endeavored to tentatively explore some related issues, not under the heading of "interests" but rather the notion of dignity, here:

Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

Prof. Colb has shown some support with using brain functions as a judgment as to when to draw the line as to abortion. Scientific evidence at this time suggests the level of consciousness to draw that line might occur near or past the current viability line. The fetus here at the start of this tragedy was at about sixteen weeks. Even now, it is very unclear if the fetus passed the line. It is therefore w/o balancing everything else unclear if the fetus is "brain alive" shall we say. |

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