Skene, Loane; Masters, Brenda --- "What Legal Rights Do You Have Over Your Body After Your Death?" [2002] ALRCRefJl 21; (2002) 81 Australian Law Reform Commission Reform Journal 38

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Reform Issue 81 Spring 2002

This article appeared on pages 38 – 41 & 89 of the original journal.

What legal rights do you have over your body after your death?

By Professor Loane Skene & Brenda Masters*

People may think that they ‘own’ their own bodies – or at least have a legal right to direct what should be done with their bodies after their deaths. However, the law is not so clear.

You do have some rights in directing what should happen to your body. For example, you may suggest funeral arrangements; request that your body be buried or cremated; or authorise the use of your body – or parts of it – for transplant, or in medical research, or in teaching. These are limited ‘rights’ because they cannot be legally enforced. They are an indication of your wishes – an authority for your next of kin or other people to carry out what you want. If those people decide to act differently, no one can take any legal steps to make them observe your directions.

In contrast, some other directions carry more legal weight. If you direct that your body should not be used for transplant, research or teaching, for example, then that will override a later authority given by your next of kin for such uses.

Finally, there are some aspects in which your wishes are not relevant. Coroners have statutory jurisdiction under the state and territory Coroners Acts to investigate certain deaths, if necessary by post-mortem examination (autopsy). You are not allowed to refuse an autopsy on your body by directing during your life that this should not occur. Also, your next of kin are not allowed to refuse an autopsy after your death if the Coroner has jurisdiction over your body.

This paper explains the rights that you and your next of kin have in respect of your body after your death – and the limits on those rights. For convenience, discussion is limited to Victorian legislation. Other jurisdictions may have different legislation.

Possession of body after death

In early English cases (mostly from the nineteenth century) and also in Australia, courts had to decide who was entitled to possession of the body of a deceased person. The principle was established that there is no property in a corpse;¹ and “neither a corpse, nor parts of a corpse ... are property protected by rights”.² A corpse could therefore not be owned; nor could it be stolen. However, the personal representatives of the deceased were entitled to possession of the body for the purpose of burial and could obtain an order of mandamus to get the body back for burial if it was held by someone else.³

The ‘no property in a corpse’ rule seems to be the same today, both in the United Kingdom and in Australia, despite the small number of cases on which it was based. In a recent Australian case, Calma v Sesar,⁴ the parents of a deceased Aboriginal boy were arguing about where he should be buried. The court said that the parents had equal rights to possession of the body for burial, but did not ‘own’ the body.

Directing funeral arrangements and pre-paid funeral plans

You can leave directions for your funeral service with your family, in your will, or by arranging and paying for your funeral before you die. Directions left with family or in your will are indications only of your wishes. They do not have any legal effect although there is an assumption that the executor, or your family, will carry out your wishes.

A pre-paid funeral, however, is more than a suggestion of the type of service you would like or the songs you want played. It is a contractual arrangement between you and the funeral director to provide a service in the future. The funeral director is paid a lump sum (or in some cases installments) for the services contracted for. The funeral director must then invest the money in an independently managed funeral fund. The money is only released to the funeral director upon your death, and then only to pay for the funeral services. In Victoria, pre-paid funerals are regulated by the Funerals (Pre-Paid Money) Act 1993. Section 8(2) of the Act does allow for alterations to be made to the contract and hence the funeral, by the executor or other legal representative, but this is limited to “a different or additional service”: s 8(2)(b). The circumstances in which the executor or legal representative can alter the pre-paid funeral contract are limited by the Act. However, one situation in which they can terminate the pre-paid funeral contract after your death is if “a funeral service ha[s] been supplied ... but was not supplied under that contract”: s 14(2). This means that if your executor or personal representative is determined to bury your body with a different service from the one you have planned, your pre-paid funeral contract will not prevent that.

Place of burial

Your will may contain instructions as to where you wish to be buried. As above, this is an indication of your wishes only. In a recent Northern Territory case,⁵ family members of Kumantjay Possum Tajaltparri were unable to agree on his burial place. Mr Tajaltparri’s will stated his wish to be buried at Napperby Station, his birth place. However, his children wanted to bury him at Mount Allan, on land that was culturally significant to their family. The Northern Territory Supreme Court held that Mr Tajaltparri was to be buried at Mount Allan, overriding what was stated in his will and instead following the wishes of his children.

However, if you have purchased a plot for your burial and a dispute arises before your body is interred about where you are to be buried, a court is likely to order that your body must be buried in that plot.⁶ On the other hand, if your body has already been buried and it is later discovered that it has been buried in the ‘wrong’ place, a court would be reluctant, and indeed may not have authority, to order that your body should be disinterred and buried in the ‘correct’ place.⁷

If you wish to be buried at sea, a permit must be applied and paid for, and authorisation received from the Minister of Environment and Heritage for the burial.⁸ Burial at sea can only occur in an area that will not conflict with, for example, fishing trawlers, and at a depth of greater than 1000 metres. Due to these restrictions, and the expense, burials at sea are uncommon.

Cremation

You may direct in your will that your body be cremated and also arrange for a cremation service through a pre-paid funeral contract.⁹ You may also direct that you do not want to be cremated.

Section 77(2) of the Cemeteries Act 1958 (Vic) states that authorisation for cremation cannot be given if the deceased had expressed in writing, or expressed or implied before two witness during his or her last illness, that the person did not want his or her corpse cremated. This will come to light as the executor of the will, or nearest surviving relative, has to complete an Application for Cremation which specifically asks whether the deceased requested not to be cremated.¹⁰ The form also asks if near relatives have been advised of the proposed cremation and whether any of those relatives object. The reasons for objection are to be stated on the form. An objection by a relative of the deceased, however, has no effect at law; though ultimately your wishes may not be followed if your relatives object, even if you have entered into a pre-paid funeral contract specifying that you should be cremated.¹¹

Cremated ashes are not ‘human remains’ or a ‘body’ and as such have no legal status. Ashes may be scattered anywhere, although if inappropriately scattered, may be conduct for which a fine may be imposed under the Environment Protection Act 1970 (Vic).

Organ donation

You may wish to donate tissue and/or organs for transplant after your death. Tissue and organs can be removed for donation if it can be established that, during your lifetime, you consented to their removal upon your death. You may record your wishes on your driver’s licence or on the Australian Organ Donor Register.¹² Alternatively, you can discuss your desire to donate organs and tissue with family members and hope they will follow your wishes. If you did not do any of these things, organs may still be removed if it can be established that you did not object to the removal of organ or tissue, and your senior available next of kin¹³ does not object to their removal (Human Tissue Act 1982 (Vic), s 26(1)).¹⁴ However, if you expressed in writing your objection to being a donor, or you spoke about it before two witnesses during your last illness, the hospital can not authorise removal of organs or tissue for transplant (s 26(3)).

You may also donate your body ‘to science’ for use in anatomical examination, or study and teaching of the anatomy of the human body. You may leave written instructions, or make verbal instructions before two witnesses in your last illness (ss 32-37), to make such a donation. You are not allowed to sell your tissue or organs (s 38(1)).

Autopsies

Coronial autopsies. There are several reasons for performing an autopsy. The first is the best known – to determine the cause of death for the purpose of a coronial inquiry. Under Coroners Acts¹⁴ and Human Tissue Acts¹⁵ in all Australian States and Territories, coroners have jurisdiction to perform an autopsy for this purpose without the prior consent of the deceased or of the next of kin after death. In Victoria,¹⁶ the senior next of kin may object to an autopsy by notifying the Coroner and, if necessary, applying to the Supreme Court. However, the Coroner may perform the autopsy despite the objection if the Coroner believes that it needs to be performed immediately (see Coroners Act 1985 (Vic), s 29). The Coroner is entitled to possession of the body while the autopsy is being conducted and, in these circumstances, no one can override the Coroner’s right. The usual right of the executor or next of kin to possession of the body for burial or cremation is suspended until the Coroner’s investigation is completed.

In Victoria, the Coroner’s powers are set out in the Coroners Act 1985 (Vic) and the Human Tissue Act 1982 (Vic). Section 30 of the Human Tissue Act states that, where a Coroner has jurisdiction over a body under the Coroners Act, that is sufficient authority for a registered medical practitioner to “conduct an examination of the body ... and ... remove tissue from the body”. This means that no further consent is needed from the deceased before death or the next of kin. Also, the tissue removed during the autopsy may be used be “for therapeutic, medical or scientific purposes”. Note that this section, if literally applied, would authorise the use of tissue for transplant or research without the person’s consent – indeed, even if the person were known to have objected. However, the Victorian Institute of Forensic Medicine has published guidelines stating that tissue will not be used without consent.¹⁷

Other autopsies. Autopsies are sometimes done for other reasons. Doctors may want to check that the cause of death on the death certificate was accurate or to obtain more information about the condition of the deceased before death. Knowledge of the exact cause of death or the condition of the deceased before death may assist families. For example, if the deceased had a genetic condition, that would have implications for blood relatives. If there was an infectious disease, contacts could be warned. If the illness was industrial, that may lead to litigation or new occupational health and safety measures. And if the autopsy produces unexpected findings, hospitals may check their diagnostic and treatment procedures and make changes to avoid future errors. Autopsies are also very important in teaching. They provide the best means for doctors and nurses in training to view organs and tissue in the process of disease. Stored organs and tissue are also invaluable in later training and research.

These types of autopsy are not performed without consent, either from the deceased before death or from the next of kin. The Human Tissue Act 1982 (Vic), for example, allows people to authorise an autopsy before they die and that is sufficient authority for the autopsy to be performed (s 28(1),(2)). The authority can be given in writing at any time or orally in the presence of two witnesses during the person’s final illness. If the person has not given an authority, the person’s ‘senior available next of kin’ may authorise the autopsy (s 28(3),(6)); unless the person is known to have objected during his or her life (s 28(4)). If no next of kin can be found after reasonable inquires, the autopsy may be performed unless the person is known to have objected during his or her life (s 28(5)). In summary, then, the person’s own wishes are paramount and this type of autopsy cannot be done if the person is known to have objected.

This does not mean that the person – or the next of kin – can require that an autopsy be performed (for example to check the cause of death). Like any other medical procedure, the medical staff have a discretion and will perform an autopsy only if they believe it is appropriate. The only circumstances in which an autopsy can be compelled is where the Coroner has jurisdiction and the Supreme Court, at suit of any person, orders an autopsy (Coroners Act 1985 (Vic), s 28(4)).

Conclusion

It can be seen from this discussion that, for the most part, the living have the authority to override any directions left by the deceased. This extends to whether the deceased person wished to be buried or cremated, where the person wanted to be buried or have the ashes scattered, and whether the person wished to donate tissue or organs for transplant. A person’s wishes not to have certain things done after death tend to carry more weight but are generally not determinative. The best way for people to ensure that their wishes are carried out after their death is to have full discussions with their relatives during their life and hope that the relatives will do as they wish after the person has died.

* Professor Loane Skene is Professor of Law in the Faculty of Law and Adjunct Professor of Law in the Faculty of Medicine, Dentistry and Health Sciences at the University of Melbourne. Brenda Masters is a Research Fellow in the Faculty of Law at the University of Melbourne.

Endnotes

1. Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (HCA); Williams v Williams (1882) 20 Ch D 659.

2. R v Kelly [1998] EWCA Crim 1578; [1998] 3 All ER 741, 749 (Rose LJ). This was subject to the rider “not in themselves and without more capable of being property” (ibid, emphasis added).

3. R v Fox [1981] 2 QB 246. Others may have a right to possession of bodies or parts of bodies. A coroner may hold a body for a coronial inquiry until the inquiry is finished: R v Bristol Coroner ex parte Kerr [1974] QB 652, 659B (Lord Widgery CJ). A person licensed to possess an ‘anatomical specimen’ has a statutory right to possession under the Anatomy Act 1984 (UK) s 1(2)(a). Note that, although it has commonly been said that an executor has the right to possession of a body for burial, Professors Kennedy and Grubb suggest that it is more likely that the relevant person is the “person(s) next entitled to be appointed the administrator of the deceased’s estate under the Non-Contentious Probate Rules 1987 (SI 1987 No 2024) r 22, ie the surviving spouse, children, parents, siblings etc”: I Kennedy and A Grubb, Medical Law, (3rd ed 2000), Butterworths, London, 2243, citing P Matthews and J Freeman (eds) Jervis on Coroners (11th ed, 1993), para 7-05.

4. [1992] NTSC 17; (1992) 106 FLR 446.

5. Sullivan v Public Trustee (Unreported, Supreme Court of the Northern Territory, Bailey J).

6. Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273, 279.

7. Ibid, 280.

8. Environment Protection (Sea Dumping) Act 1981, (Cth) s 19.

9. Funerals (Pre-Paid Money) Act 1993 (Vic), s 3(1): definition of ‘funeral service’.

10. Cemeteries Act 1958 (Vic), Sch 2.

11. See Funerals (Pre-Paid Money) Act 1993 (Vic), s 14(2)(b) discussed above.

12. http://www.hic.gov.au/yourhealth/our_services/aaodr.htm

13. ‘Senior available next of kin’ means, for a deceased child, the first available parent, brother or sister over 18, or guardian; for a deceased adult, the first available spouse or domestic partner, son or daughter of the person over 18, parent, brother or sister over 18: Human Tissue Act 1982 (Vic), s 3(1).

14. Coroners Act 1997 (ACT); Coroners Act 1980 (NSW); Coroners Act 1993 (NT); Coroners Act 1958 (Qld); Coroners Act 1975 (SA); Coroners Act 1995 (Tas); Coroners Act 1985 (Vic); Coroners Act 1996 (WA).

15. Human Tissue Act 1982 (NSW); Human Tissue Act 1985 (Tas); Human Tissue Act 1982 (Vic); Human and Transplant Act 1982 (WA); Human Tissue Transplant Act 1979 (NT).

16. And also New South Wales, Western Australia, and the Northern Territory.

17. http://www.vifp.monash.edu.au/issues/research_tissue.pdf