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What Remains Series No.2: How Were Human Remains Historically Treated?

Possession versus Property

A fundamental question that has been canvassed over several centuries is whether one can have a right of “property” over a human body. While there is no doubt that one cannot have a right of possession or ownership over a live human body,[1] the debate over a dead human body is more complicated.[2]

Halsbury’s Laws of England, vol. 3, tit. “Burial and Cremation” provides simply:

The law in general recognizes no property in a dead body.[3]

Historically, the principle that one cannot own a human body has been upheld.  Its roots lie in ecclesiastical law which held that the body “was the temple of the Holy Ghost and it would be sacrilegious to do other than bury it and let it remain buried.”[4]

In Institutes of the Laws of England, published in 1641, Sir Edward Coke wrote that a cadaver “belongs to ecclesiastical cognisance.”[5]

In the 1867 English decision of Foster v. Dodd,[6]  Byles J. wrote:

A dead body belongs to no one, and is, therefore, under the protection of the public.  If it lies in consecrated ground, the ecclesiastical law will interpose for its protection, but, whether in ground consecrated or unconsecrated, indignities offered to human remains in improperly or indecently disinterring them, are the grounds of an indictment.

In Williams v Williams,[7] an 1882 decision of the English court, Kay J. wrote of English law:

It is quite clearly the law of this country that there can be no property in the dead body of a human being.

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 whatever in it) until it is properly buried.

So, while there is no ownership of a body, an estate trustee has the right of possession of the body of the deceased.  The estate trustee’s right of custody and possession is distinct from rights of ownership, or property rights.

In the 1911 decision of Miner v. Canadian Pacific Railway,[8]  the Alberta Supreme Court considered an appeal of a decision by Justice Beck ordering damages payable to the mother of a deceased whose son’s remains were transported to the wrong town, and whose bag was lost by the railway company.  The Alberta Supreme Court allowed the appeal on the issue of damages alone.  Justice Beck’s decision remains a sound overview of case law on the treatment of human remains.

Justice Beck noted that while there is at law “no property” in a corpse, there are exceptions to that rule, for instance, in the case of mummies which can be the subject of property, that is in fact, owned.  Justice Beck, further noted that there can be a right of property over “skeletons or anatomical preparations of bodies or parts of bodies; and, I shall take the liberty of adding – outside the range of the ecclesiastical law of the Church of England – bodies or parts of bodies preserved and venerated as the relics of saints.”[9]

Notably, while English decisions are mostly determined by the ecclesiastical law of the Church of English, that basis of law has no application in Canada.[10]

Justice Beck cited a range of English cases on the issue of the treatment of remains in his decision, and summarized the view that there is a somewhat restricted right of property in a corpse, as follows:

..the law recognizes property in a corpse, a property, of course, which is subject, on the one hand, to the obligations, e.g. of proper care and prima facie of decent burial appropriate to its condition and the condition of the individual in his lifetime…and to the restraints upon its voluntary or involuntary disposal and use provided by law (e.g. the existence of the conditions authorising its use for anatomical purposes) or arising out of the fact that the thing in question is a corpse. . .and, on the other hand, the nature and extent of the right or obligation of the person for the time being claiming property (e.g. an executor, a husband, wife, next of kin, medical institute, etc.)[11]

Justice Beck also made notable and favourable reference to the 1908 decision of the High Court of Australia, in Doodeward v Spence.[12]  In that case, the plaintiff sought to recover the body of a still-born fetus that had been preserved by a physician and later purchased by the plaintiff’s father.  The plaintiff had put the preserved body on public display.  He had been prosecuted for indecent exhibition and pleaded guilty to the charge. In the course of criminal proceedings, a police officer had taken possession of the body and intended to dispose of it. The plaintiff requested that the trial judge order the body returned to the plaintiff.  The trial judge denied that request, and the plaintiff sued the defendant police officer for possession of the body.  In spite of the criminal conviction, the majority of the High Court ruled that the body should be returned to the plaintiff.  Griffith C. J. wrote for the majority as follows:

…In my opinion, there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial…If the requirements of public health or public decency are infringed, quite different considerations arise…If, then there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies.  I do not know of any definition of property which is not wide enough to include such a right of permanent possession.  By whatever name the right is called, I think it exists, and that, so far as it constituted property, a human body, or a portion of a human body, is capable by law of becoming the subject of property.

Therefore, despite being convicted in criminal court of indecently displaying a human body, a person could still successfully claim possession, and even property, of that human body.

There was a dissenting opinion by Higgins J., who disagreed on the basis that there could be no ownership of a human corpse.

The principles in Doodeward v Spence, have been upheld in more recent case law.  The decision was referred to favourably in Yearworth v North Bristol NHS Trust (CA),[13] a 2010 English decision.   It was also favourably referred to by the English Court of Appeal in the 1999 decision of R v Kelly.[14]  In Kelly, the English Court of Appeal was asked to overturn a conviction for theft of human body parts held at the Royal College of Surgeons for use in training.  The defendants argued that they should not have been convicted of theft since human body parts could not be considered property and therefore could not be the subject of theft.  The appeal was dismissed.  At pages 630 to 631 of the judgment, Rose LJ wrote, referring to Doodeward v Spence, that while there could be no property in a corpse, parts of a corpse could be considered property if they had “acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.”

As such, it appears that while the law generally states that there is “no property” in a human body, there are rights of possession, that resemble property rights, and in cases where the corpse or parts of it have been transformed for a specific use, there can be a right of property over such body or body parts.

There has been some advancement in Canada by the court, relying on the Yearworth decision in its analysis of whether certain genetic reproductive material, such as sperm, and ova is considered “property” in specific situations.

In Yearworth, the English Court held that stored sperm was property for the purposes of an action for negligent damage to property. The appellants were all diagnosed with cancer. Before undergoing chemotherapy, they produced sperm samples which were being stored at the respondent’s facilities. Before any of the appellants could use the sperm, the respondent’s freezing system failed and the sperm perished. The Court recognized that historically, the common law did not permit any property interest in the human body, or body parts, living or dead. However, it referred to Doodeward v Spence which created an exception to this rule and held that developments in medical science “now require a re-analysis of the common-law’s treatment of and approach to the issue of ownership of parts or products of a living human body, whether for present purposes (viz. an action for negligence) or otherwise.” The Court in Yearworth, held that for the purposes of their negligence claims, the appellants had ownership of the sperm which they generated for the sole purpose of its later use for their own benefit. Their rights to use the sperm were limited by legislation and no person other than the appellants had any right in relation to the sperm.

In the 2015 case of Lam v University of British Columbia,[15] the British Columbia Court of Appeal upheld the trial judge’s finding that frozen human sperm is property for the purposes of the Warehouse Receipt Act, RSBC 1996, c 481. The facts in Lam were similar to Yearworth, in that it was a class action on behalf of men who had frozen their sperm in the University’s freezer. As a result of a power failure, the stored sperm was damaged or destroyed. In the concurring reasons by Bennett JA., and Frankel JA., the Court emphasized that it was determining whether human sperm was property in a very narrow context, and, was not determining whether sperm in other contexts such as in estate or matrimonial law could be considered property.

In Canada, section 8 of the Federal Assisted Human Reproduction Act SC 2004, c 2 (AHRA) and ss. 3(1) and 4(1) of the Assisted Human Reproduction Regulations, SOR/2007-137 require an individual to give written consent before that individual’s reproductive material can be used for the purpose of creating an embryo. This includes posthumous use of the reproductive material.

In the 2016 British Columbia case of KLW v Genesis Fertility Centre,[16]  a widow brought an unopposed petition seeking a declaration that she was the legal property owner of her deceased husband’s reproductive material stored at the fertility centre. However, the husband had not provided written consent before he died, as is required pursuant to the AHRA. The fertility centre continued to store the reproductive material but refused to release the material without the deceased’s written consent. The wife argued she was the owner of the reproductive material since her husband had died intestate and under  intestacy legislation she was the only beneficiary of his estate. She also presented to the Court sufficient evidence to prove that it was the deceased’s intention for his wife to use his frozen sperm to conceive a child, even if he died.

The first question addressed by the court was: does the reproductive material constitute “property”? As a preliminary note, Justice Pearlman observed the distinction between leaving someone your genetic material under a Will, and, the required consent under the Federal AHRA legislation. Justice Pearlman noted that “rather than requiring any kind of testamentary grant or consent, s. 8(1) of the AHRA requires a donor to provide his written consent in accordance with the Regulations, to the use of the human reproductive material (in this case by his spouse), for the purpose of creating an embryo.”[17] Justice Pearlman went on to confirm that “in particular contexts, courts in various jurisdictions have held that human sperm or ovum for reproductive purposes are property”.[18] Justice Pearlman found that the sole purpose for extracting and storing the sperm was to preserve it for later use by the deceased and his wife to attempt to conceive a child. While the deceased could not sell the stored sperm, only he could authorise its reproductive use by his wife after his death or donate it for the reproductive use of a third party. Therefore, Justice Pearlman concluded that the deceased had rights of use and ownership of the reproductive material sufficient to make it “property”.

The next question was whether the reproductive material passed to his wife as the sole beneficiary of his intestate estate? Justice Pearlman concluded that though its use was restricted by legislation, the reproductive material was the deceased’s “personal property” as defined by section 1 of the Wills, Estates and Succession Act, SBC 2009 c 13. No one other than the wife claimed any right in the property. Following the husband’s death, the property in the reproductive material vested in the wife, the sole beneficiary of his intestate estate.

Rights versus Obligations

Another way of considering the issue of possession or custody of a human body, is to view it through the prism of obligations, rather than rights.  That is, rather than determining that the executor has the right to deal with the deceased’s body, courts have characterized the executor’s relationship with the corpse as one guided by duties.  Generally, once a person dies, there are obligations, and not rights, that arise, with respect to that person’s remains.

In the 1904 Pennsylvania decision of Pettigrew v Pettigrew,[19] the Court wrote the following on the issue of possession of a corpse:

It is commonly said, being repeated from the early cases in England, where the whole matter of burials was under the jurisdiction of the Ecclesiastical Courts, that there can be no property in a corpse.  But inasmuch as there is a legally recognized right of custody, control, and disposition, the essential attribute of ownership, I apprehend that it would be more accurate to say that the law recognizes property in a corpse, but property subject to a trust, and limited in its rights to such exercise as shall be in conformity with the duty out of which the rights arise [emphasis added].

In the decision of Abeziz v Harris Estate,[20] Justice Farley commented:

I understand that there is no legal right in a corpse (absent possibly some interim element under the Anatomy Act, R.S.O. 1990, c.A.21 for medical research).  Rather than rights there are only obligations.  This is an obligation the law places on the executor if there is one…[21]

Addressing the competing claims by the deceased’s mother and the named executor, Justice Farley continued at paragraph 28:

…While one cannot be human if one were to ignore the distress [the Deceased’s mother] has in the circumstances, it does not seem to me that in the legal sense any of her rights are being affected.  Rather she is being relieved of a legal obligation of [her son’s] body, an obligation that would fall to her as parent pursuant to Vann (I do appreciate that she would gladly bear this obligation).  [The Deceased’s] executrix…does have the legal obligation to attend to this using estate funds…

In Lajhner v Banoub,[22] referred to in more detail below, Justice Gunsolos reiterated the point made in Abeziz v Harris Estate, and noted:

There is no legal right in a corpse.  Rather than rights, there are only obligations.  This is an obligation that the law places on the estate administrator. [emphasis added]

[1] Yearworth v North Bristol NHS Trust (CA) [2009] EWCA Civ 37 at paragraph 30 (“Yearworth”).

[2] Miner v Canadian Pacific Railway, 1911 CarswellAlta 23, 3 Alta LR 408, 18 WLR (“Miner v. Canadian Pacific Railway). Justice Beck’s decision, which was overturned by the Alberta Supreme Court on the issue of the quantum of damages, provides a comprehensive survey on the state of the law on the rights attaching to human remains

[3] Halsbury’s Laws of England, Vol 3 at p 405

[4] Cited in Yearworth at para 31

[5] Yearworth at para 31

[6] (1867), LR 3 QB at p. 77, 8 B. & S. 842, 37 LJQB 28, 17 LT 614

[7]  (1882) 20 Ch D 659, 51 LJ Ch 385, 46 LT 275, 46 JP 726, 15 Cox 39 (“Williams”)

[8] Miner v Canadian Pacific Railway

[9] Miner v Canadian Pacific Railway at para 18

[10] Miner v Canadian Pacific Railway at para 19

[11]Miner v Canadian Pacific Railway at para 22

[12] (1908), 6 Commonwealth Law Reports 406 (“Doodeward”.

[13] Yearworth, supra note 8 at paras 31 and 33

[14] [1999] QB 621

[15] 2015 BCCA 2

[16] 2016 BCSC 1621

[17] 2016 BCSC 1621 at para 45

[18] KLW v Genesis Fertility, 2016 BCSC 1621 at para 60, citing CC v AW, 2005 ABQB 219; JCM v ANA 2012 BCSC 584; Lam v University of British Columbia, 2015 BCCA 2; Yearworth v North Bristol NHS Trust, [2009] EWCA Civ 37; Kate Jane Bazley v Wesley Monash IVF Pty. Ltd., [2010] QSC 118 (Queensland SCTD); Jocelyn Edwards: Re the Estate of the Late Mark Edwards, [2011] NSWSC 478.

[19] (1904), 207 Pa. 313, 64 LRA 179

[20] 1992 CarswellOnt 3803, 3 W.D.C.P. (2d) 499, [1992] O.J. No. 1271 (Gen.Div.) (“Abeziz”)

[21] Abeziz at para 28

[22] 2009 CarswellOnt 1745, 49 E.T.R. (3d) 87 at paragraph 22 (“Lajhner”)

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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