Respecting the living means respecting the dead too

Oxford Journal of Legal Studies

Volumn 28, Issue 2, 2008, Pages 297-316

  Mcguinness, Sheelagh ^a   Brazier, Margaret ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 47049110382     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqn005     Document Type: Article

References (94)

1. J Harris, 'Law and regulation of retained organs: The ethical issues' (2002) 22 LS 527-49, 548 (emphasis added).
2. W Cobbett, Surplus Population and the Poor Law Bill: A Comedy in Three Acts (Publisher unknown, 1834).
3. See R Richardson, Death, Dissection and the Destitute (2nd edn The University of Chicago Press, Chicago 2000);
4. R Richardson, 'Human dissection and organ transplantation in historical context' in M Sque and S Payne (eds), Organ and Tissue Donation: An Evidence Base for Practice (Open University Press, Berkshire 2007) 4-20.
5. R Tallis, Hippocratic Oaths: Medicine and its Discontents (Atlantic Books, London 2004) 195.
6. See the two principal reports into organ retention: Bristol Inquiry Report Removal and Retention of Human Material hereafter referred to as the Bristol Inquiry (Department of Health, 2000);
7. The Royal Liverpool Children's Inquiry Report hereafter referred to as the Redfern Report (The Stationery Office, London 2001).
8. The organ retention controversy is discussed in M. Brazier and E. Cave, Medicine, Patients and the Law (4th edn Penguin, London 2007) Ch 19.
9. The rate of refusal has been found to be as high as 40%, and up to 70% in certain 'non-white' groups; see K Barber and others, 'Potential for Organ Donation in the United Kingdom: Audit of Intensive Care Records' (2006) 332 BMJ 1124-7;
10. discussed in Sque, Payne and Macleod Clark, 'Gift of life or sacrifice? Key discourses for understanding decision-making by families and organ donors' in Sque and Payne (n 3) 40-58.
11. Glass v United Kingdom [2004] 1 FCR 553.
12. See M Brazier, 'Human(s) (as) Medicine(s)' in S. MacLean (ed), First Do No Harm (Ashgate, Aldershot, 2006), 187-202.
13. Section 45 of the Human Tissue Act 2004 extends to Scotland (see s 59). The Human Tissue Act 2004 for the most part applies only in England, Wales and Northern Ireland. Section 45 makes it a criminal offence to possess bodily material for DNA analysis without qualifying consent or other lawful authority. 'Excepted purposes' constituting such lawful authority include medical diagnosis or treatment and the prevention or detection of crime. See JK Mason and GT Laurie. Mason and McCall Smith's Law and Medical Ethics (7th edn OUP, Oxford 2006) 221.
14. We do not attempt to embark on any analysis of the complex debate on property in the body. The issues are well covered in Mason and Laurie (n 9) Ch 15.
15. Mason and Laurie rightly conclude that there is 'wide-spread ambivalence about property in human material' (515). And see also JK Mason and GT Laurie, 'Consent or property: Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey' (2001) 64 MLR 710-29;
16. J Herring and P-L Chau, 'My Body, Your Body, Our Bodies' (2007) 15 Med LR 34-61.
17. For a comprehensive account of the body as property see R Hardcastle, Law and the Human Body (Hart Publishing, Oxford 2007).
18. Colo v Turner [1704] 6 Mod Rep 149.
19. See Moore v Regents of the University of California 793 P 2d 479 (Cal, 1990).
20. The difficulty the law has in dealing with metaphysical harms has been noted in J Coggon, 'Varied and Principled Understanding of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism' (2007) 15 Health Care Anal 235-55.
21. Nuffield Council on Bioethics Human Tissue: Ethical and Legal Issues (1995).
22. Mason and Laurie (n 9) 520.
23. See M Brazier, 'Human Tissue Retention' (2004) 72 Med LJ 39-52. (We may however have an interest in the cyst not being used to create a clone of you against your will, or to plant your DNA at a crime scene, etc.).
24. Herring and Chau (n 10).
25. Mason and Laurie (n 9).
26. See D Price, 'The Human Tissue Act 2004' (2005) 68 MLR 798-821.
27. See ss 1(7), 1(8), 1(9) of the Human Tissue Act 2004 and the Human Tissue Act 2004 (ethical approval, exceptions from Licensing and Supply of Information about Transplants Regulations) 2006 (SI 2006/1260).
28. Harris (n 1).
29. We do not and cannot know if Harris or the Pope or anyone else is right. And at the end of it all, none of them can prove their case because it will be rooted in some metaphysical conviction that is (by definition) not empirically demonstrable.
30. J Thompson, 'Reasons and Reasoning' in M Black (ed), Philosophy in America (Allen & Unwin, London 1995) 283.
31. B Williams, 'From Freedom to Liberty: The Construction of a Political Value' (2001) 30 Phil & Pub Aff 3-26, 10.
32. Throughout this article religious beliefs will often be used as an example of a conscientious belief. However, this itself can lead to problems as the official stance of most Religions does not prohibit organ donation. This could lead to the suggestion therefore that, if we realy do wish to respect religious belief, then this is one further reason to coerce people into donating their organs; it is not activity which 'religion' can protect them from. Indeed it would be peculiar for the law to single out one aspect of religious doctrine for enforcement. However, for many people religious beliefs are as much a matter of personal or conscientious conviction as they are a matter of doctrine. In this article, we argue that both doctrinal and personal religious beliefs and all other conscientious beliefs deserve strong consideration.
33. See The Bristol Inquiry (n 5);
34. The Redfern Report (n 5);
35. Department of Health Report of a Census of Organs and Tissue Retained by Pathology Services in England (Department of Health, 2001).
36. The then Secretary of State described the Redfern Report as the most shocking he had ever read; see The Times (29 January 2001).
37. See also M Brazier, 'Retained Organs: Ethics and Humanity' (2002) 22 LS 549-69. The Retained Organs Commission was set up to manage the process by which NHS trusts provided information to families about organ retention, oversee the process of organ return, act as an advocate for families and develop a new regulatory framework for organ and tissue retention.
38. See, for example, the summary relating to Stephen 'buried ten years ago as a shell': The Redfern Report above (n 5) 436.
39. See Remembering the Past, Looking to the Future Final Report of the Retained Organs Commission (Department of Health, 2004).
40. The Redfern Report (n 5) 395.
41. Bristol Inquiry (n 5) [33].
42. See (inter alia) The Investigation of Events that Followed the Death of Cyril Mark Isaacs (Department of Health, 2003).
43. This is why the taking of our children's organs and tissues has been such an offence to parents and families. When your child is sick and helpless, you hold them to yourself to let them feel the warmth and reassurance of your body. When they die, the memory you cherish is the warmth of that embrace body to body, flesh to flesh, heart to heart. The body - their body - weak and vulnerable, pressed against yours - strong and caring - hoping for a miracle.' in J Harrison and others (eds), Rebuilding Trust in Healthcare (Radcliffe Publishing Oxford 2003) 2.
44. We acknowledge that there may be conflict between the wishes of the family and those of the deceased. We do not, for reasons of space, discuss this issue here. For an analysis of this particular problem, see H Conway, 'Dead, but not Buried: Bodies, Burial and Family Conflicts', (2003) 23 LS 423-2.
45. See the Redfern Report (n 5) 25.
46. For example, an individual may not be comfortable with their eyes being donated but may be happy to donate their heart or vice versa: G Randhawa, 'An Exploratory Study Examining the Influence of Religion on Attitudes Towards Organ Donation Among the Asian Population in Luton, UK' (1998) 13 Nephrol Dial Transplant 1949-54, 1952: 'Of the people who would donate, some reticence was expressed by a few respondents only in donating their eyes. This was mainly related to how they would look before their burial...'.
47. DA Shewmon, 'The Brain and Somatic Integration: Insights into the Standard Biological Rationale for Equating "Brain Death" With Death' (2001) 26 J Med & Phil 457-78, 458.
48. See Richardson (n 3) 4-20.
49. JC Callahan, 'On Harming the Dead' (1987) 97 Ethics 341-52.
50. Brazier (n 26) 545.
51. See M Sque, 'A dissonant loss: The bereavement of organ donor families' in Sque and Payne (n 3) 59-81.
52. J Harris, 'Organ Procurement: Dead Interests, Living Needs', (2003) 29 J Med Ethics 130-4, 131.
53. A Ellis, 'What is special about Religion?' (2006) 25 L & Phil 219-41 (Our emphasis).
54. Ibid 240.
55. See Transplant for Life website, accessed 22 February 2008.
56. M Lamm, The Jewish Way in Death and Mourning (Jonathan David, New York 2000) 10.
57. I Jacobovitz, Jewish Medical Ethics (Bloch, Florida 1975) 282-3.
58. D Sinclair, Jewish Biomedical Law (OUP, Oxford 2003) 251.
59. Ibid.
60. A Sheikh and AR Gatrad, Caring for Muslim Patients (Radcliffe Medical Press Oxford 2000), 107.
61. 'Jehovah's Witnesses are often assumed to be against donation because of their opposition to blood transfusions. However, this merely means that all blood must be removed from the organs and tissue before being transplanted.': Center for Organ Donation and Transplant, website, accessed 28 August 2007.
62. Brazier (n 26) 559.
63. C Davis and G Randhawa, 'The Influence of Religion on Organ Donation and Transplantation Among the Black Caribbean and Black African population - A Pilot Study In the UK' (2006) 16 Ethn Dis 281-5.
64. Randhawa (n 35) 1952. It is interesting and important to note that one of the main bars to organ donation among this group was lack of information about the official stance of their religion towards donation. Many expressed the view that if their religion did allow donation then they do would be happy to donate their organs.
65. Brazier (n 26).
66. P Morgan and C Lawton, Ethical Issues in Six Religious Traditions (Edinburgh University Press, Edinburgh 1997) xxii.
67. 'Gypsies are a people of different ethnic groups without a formalized religion. They share common folk beliefs and tend to be opposed to organ and tissue donation. Their opposition is connected with their beliefs about the afterlife. Traditional belief contends that for one year after death, the soul retraces its steps. Thus, the body must remain intact because the soul maintains its physical shape.': Transplant for Life, website, accessed 28 August 2007.
68. The Maoris and Pacific Islanders in New Zealand often hold similar beliefs and therefore have lower rates of donation than the general population: Andy Tookey, GiveLife NZ Facts and Figures, accessed 28 August 2007.
69. BR Leiter, 'Why Tolerate Religion?' Constitutional Commentary, Winter 2008 last accessed 10 April 2008.
70. Re T (Adult Refusal of Treatment) [1992] 4 All ER 649.
71. The use of a lower case 'g' is because 'god' in this instance is being used as a noun to describe a feature which most religions have without endorsing any one view of this feature.
72. This is not the situation in every jurisdiction. See E Donnellan, 'Woman in Court Transfusion case recovering in hospital' The Irish Times (22 September 2006).
73. 'The judge directed the hospital to do everything in its power to save the life of the woman and said staff could restrain her if she physically attempted to stop doctors administering to her a life-saving transfusion. He said the interest of her newborn child, a boy, who he was told was "in good shape", was paramount and the baby could be left with no one in the State, as far as was known, to look after its welfare, if its mother passed away.' http://www.ireland.com/newspaper/ frontpage/2006/0922/1158590881290.html accessed 29 August 2007.
74. European Convention on Human Rights, Art 9(2). (emphasis added).
75. 17 EHRR 293, We acknowledge that not all religious and spiritual beliefs will be protected by Art 9, we also accept that states will be afforded a margin of appreciation in how they protect these beliefs.
76. T Robbins, 'New Religious Movements in the 21st Century' in PC Lucas and T Robbins (eds), New religious movements in the 21st century (Routledge, New York 2004) 9-10.
77. For an interesting discussion of why we may have good reasons to respect the wishes of the dead see B Brecher, 'Our obligations to the dead' (2002) 19 J Appl Phil 109-19
78. For a more direct consideration of posthumous harm see D Grover 'Posthumous Harm' (1989) 39 Phil Q 334-5
79. E Partridge, 'Posthumous Interests and Posthumous Respect' (1981) 91 Ethics 243-64.
80. This refocusing fits well with the approach of the courts in Ashan v Universities Hospital Leicester [2006] EWHC 2624 (QB). In this case, the courts recognised that it was in a woman's interests to have her religious beliefs respected. This was regardless of the fact she would not directly experience this respect.
81. D Parfit, 'Innumerate Ethics' (1978) 7 Phil & and Pub Aff 285-301.
82. Ellis (n 42) 240.
83. D Parfit, 'Equality or Priority' in John Harris (ed), Bioethics (OUP, Oxford 2001) 348.
84. A more detailed discussion of this point is beyond the scope of this article. W Glannon, 'Do the Sick have a Right to Cadaveric Organs?' (2003) 29 J Med Ethics 153-6 is a useful introduction to this issue.
85. J Harris, 'The Survival Lottery' in Harris (n 68) 300-18.
86. J Rawls, Theory of Justice (Harvard University Press, Cambridge, MA 1971) 206.
87. G Pennings, 'Directed Organ Donation: Discrimination or Autonomy?' (2007) 24 J App Phil 41-9.
88. Richardson provides an historical example which backs up this claim. She describes how Parliament, instead of coming up with ways to improve consented donation, passed the Anatomy Act 1832 which stated that all those who died in poverty and were too poor to pay for their funerals were liable to have their bodies taken and used for dissection. However, this proved not to be as reliable a method for increasing the numbers of bodies available for dissection as the government had hoped for. 'Fear of dying in the workhouse so terrified the Victorian poor and their children that they contributed vast profits to the big business insurance companies by paying in their millions for penny-a-week policies to cover funeral costs. The pauper funeral became the signature of social failure, and helps explain why a 'decent' funeral in Victorian and even early twentieth-century Britain provided so visible a public display, and why even in recent times, a pauper's funeral was regarded as something to be avoided at all costs.' R Richardson, 'Human Dissection and Organ Transplantation in Historical Context' in Sque and Payne (n 3), 15.
89. Sheikh and Gatrad (n 49), 107.
90. M Sque and S Payne, 'Closing thoughts and the future' in Sque and Payne (n 3), 169-80.
91. Ibid.
92. We distinguish here between the everyday use of the word person in a descriptive sense and the morally normative use of the concept of 'Persons'.
93. The Redfern Report (n 5), 24.
94. Ellis (n 42), 240.