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.