Law: The heart of the matter

The law is in a muddle over who owns our bodies after death.
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The Independent Online
WHO OWNS your body? Alive, you can control what is done to you through giving consent to medical treatment. But what about when you are dead? Who owns or has control then?

For the parents of the babies who died after cardiac surgery at the Bristol Royal Infirmary, the discovery that the hospital had kept the children's hearts came as a devastating and grisly shock. It will be one of the many issues under investigation when the public inquiry starts on 16 March.

More generally, it is a matter of growing concern that, as research techniques become increasingly sophisticated - with the possibility that parts of your body could become the raw material for very profitable treatments - legislation has fallen behind the times. Four years ago, the Nuffield Council for Bioethics called for the law to be clarified as "its uncertainty may impede legitimate treatment".

But there are no specific legal provisions in statute on the ownership of bodies or body parts, except for an ancient common law principle that no one can claim legal ownership of a body. Current legislation includes the Human Organ Transplants Act 1989, which regulates the removal of organs for transplant. John Harris, professor of bioethics at Manchester University, suggested that bodies should become public property on death so that consent to organ donation would be automatic, unless someone chose to opt out.

The Human Tissue Act 1961 regulates the removal of body parts "for therapeutic purposes or for the purposes of medical education or research" and the Anatomy Act 1984 regulates the conduct of anatomical examinations. Both refer to "the person lawfully in possession of the a body" as the person who can give consent to the removal of body parts, post mortems and anatomical examinations. But neither defines who that person can be.

Relatives of the deceased have some rights of possession of the body, but only to ensure proper burial. It is implicit in the Human Tissue Act that where someone dies in hospital, the hospital is "lawfully in possession" of the body. The hospital can then authorise the removal and use of body parts, if it believes the deceased or any surviving relative would not object.

In the case of the babies who died at Bristol Royal Infirmary, their families have little chance of redress because proving that a hospital has acted unreasonably is too difficult to be viable. Laurence Vick, solicitor for some of the families, aims to show a link between their mental trauma and the hospital's original negligence. But the parents' primary concern is to ensure the practice of retaining body parts is better regulated.

The line of authority "twists and turns", says solicitor Mark Stephens, who acted for Anthony Noel-Kelly, the sculptor jailed last year for stealing human body parts. The prosecution argued that the common law stating that no one could own a body derived from a misunderstanding. A 1614 case of alleged burial-shroud theft ruled that a corpse could not own property, but was wrongly taken to mean that a corpse itself could not be owned. And two years ago, the case of Deborah Dobson, who died from brain tumours, also tested the question of ownership. Her grandparents sued Newcastle Health Authority for destroying a part of her brain which meant that they could not establish whether the tumours had been malignant. Judges held that there was no property in a corpse and no duty on a hospital to preserve body parts indefinitely. Richard Hone QC, counsel for the family, said: "The law is in a fearful muddle about this." So muddled, says medical negligence specialist Dan Brennan QC, that people are less protected in terms of medical research than animals.

He is concerned that very few research ethics committees have lay members, while the medical profession is increasingly being subjected to commercial pressures. His own view is that there must be tighter controls: "Patients must be put at the forefront, whether they are alive or dead."