Sunday, April 20, 2008

Whose property is it anyway?

Is there a property in a dead body? The question is not in the realm of philosophy but in law. The heritability, transferability, ownership and the value of a thing are the property that we are talking about. The person that is dead cannot be the owner of his own body since the component of enjoyment is absent. The legal heirs do not inherit it as property since the idea of possessing it as a thing of value does not exist. It may be illegal to transact in a dead body and hence to talk about its transfer would be unheard of. There is no title in a corpse to own it. All that the laws, especially the municipal/corporation laws, guarantee is the right of the nearest relative to take possession of a corpse for burial or cremation. Ever since the advancement in science recognizes the possibility of organ transplantation from a dead person, dead body has become a thing of value. Scarlett, a teenager, was found dead in Callangute beach in Goa. A month after the body was flown to UK, her mother has claimed that the autopsy has revealed that her kidneys, stomach and uterus are missing and she will get back to India to pursue her fight for justice.
The Anatomy Act of 1949 was a model legislation that was passed by the Indian Parliament which was adopted with minor modifications in all States. The object of the legislation has been to provide for supply of unclaimed bodies of deceased persons to teaching medical institutions and hospitals for the purpose of anatomical examination and dissection or medical relief or treatment. When there is any doubt regarding the cause of death, the Act also provides that the unclaimed body to be referred to the police officer under section 174 of the Code of Criminal Procedure, 1898. Pending receipt of any claim, the dead body shall be removed to the hospital or the teaching medical institution for preservation from decay. Dead bodies which are received shall be kept temporarily in the cold storage of the Mortuary until they are removed to the Anatomy Department. In the Anatomy Department they shall be washed and preserved by means of formalin or glycerin solution. Those which are not required for immediate use shall be kept in a tank containing preservation solution. Once a body has undergone a process or other application of human skill, such as stuffing or embalming, it can, it seems, be the subject of property in the ordinary way. And the same goes for body parts. Thus in the grisly case of R v Kelly (1999) robbers who abstracted and sold preserved specimens from the Royal College of Surgeons' collection (UK) were held rightly convicted of theft. The right to the organs was recognized in the hospital and not to the relatives.
The Human Transplantation of Organs Act 42 of 1994 was passed by the Indian Parliament to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto. While commercial exploitation is an offence, mere removal of organs inside from a dead body does not appear to be an offence. R v Kelly threw an interesting sidelight when the accused was defending his act of removal of the organs on the ground that he loved dead bodies and he used the organs for making prototypes and sell them as exhibits of artistic value! There have been strange cases associated with dead bodies in various parts of the globe and the issues have come knocking at the portals of courts at various times. In re Organ Retention Group Litigation, [2004] EWHC 644 (QB), [2005] QB 506, the claimants in a group action were all parents of deceased children on whom post mortems had been conducted by doctors to establish the causes of death. The claimants alleged that, although they had consented to the post mortems, the organs of the children had been removed, retained and subsequently disposed of without their knowledge. The Queen’s Bench held that the removal and retention of the organs were lawful and the claimants' right of possession to the organs based on a duty of burial did not arise; and that, accordingly, there could be no action for wrongful interference with a body. However, it ruled that the claimants' case in negligence was held to be sustainable. It only arose in the context of hospital post mortems; that the evidence of doctors and the experts showed that doctors could owe a duty of care to a mother after a death of her baby on a doctor-patient basis; that once the doctor-patient relationship was established, the doctor owed a duty of care when seeking consent for a post mortem examination; that although the duty was to ensure non-objection, some explanation of what the parents were being asked not to object to must have been involved; that the duty of care extended to giving the parents an explanation of the purpose of the post mortem and what it involved including alerting them to the fact that organs might be retained; that the practice of not warning parents that a post mortem might involve the removal and subsequent retention of an organ could not be justified as a practice to be adopted in all cases; and that, in the circumstances, only one of the claims in negligence succeeded.
By Indian tradition and culture, the same human dignity (if not more), with which a living human being is expected to be treated, should also be extended to a person who is dead. Duties to protect the dignity of the human body after its death are deeply rooted in our nation's history. Recently, the Madras High Court upheld the claim of the father of a rubber plantation worker who died in Malaysia and whose body had been kept in the mortuary for 7 months and directed the Government of India to take steps to transport the body to India free of cost. When Scarlett's mother took the body of her daughter to UK, could it be said that she had a right to take merely the frame of her body sans the organs within it? Maybe, when we learn to treat the human beings with respect, we will have known to treat the dead body also with reverance

1 comment:

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This program has become an end in itself so that they make criminals out of poor and forgetful people