Dead right

Jeremy Bentham

“I regard this body of mine as being mine in life and it is for me to say in what way it should be disposed of after my death. I regard that as an absolute ... For example, I would have the gravest reservations about any organs from my body after my death being used to save the lives of Mr Adams or Mr McGuinness, or any of the gangsters with whom they have long been associated.”

Also sprach Lord Tebbit in the House of Lords in a debate on preferential organ donation in March this year. We know why he would say that, we sympathise, even, but he’s wrong. No one owns their body in life or in death. That’s why we’re not allowed to pay for that new garden room we crave by selling a kidney. It’s a mighty thorny area, this, fraught with muddy water. Let’s focus on dead bodies, the proper study of this blog.

Who does a dead body belong to? No one. In law, "the only lawful possessor of the dead body is the earth". The executor or administrator of the dead person’s estate is entitled to custody of the body, but only but only on condition that he or she does not display it in a way which would outrage public decency, and disposes of it before it becomes a public health hazard..

It’s not as straightforward as that, though. If a dead body has been the recipient of ‘work and skill’ it becomes property. That’s why museums legally own their mummies, London University owns Jeremy Bentham and anyone can own a skeleton. It is why the estate of the painter Robert Lenkiewicz was allowed in 2004 to retain possession of the body of the tramp Diogenes, which Lenkiewicz embalmed and then refused to hand over to officials of Plymouth City Council when they came to take it away and dispose of it.

What status does a dead body have when it has been subjected to conventional embalming?

What duty of care does the possessor or custodian owe to a dead body?

What level of care is a bereaved family entitled to require of an undertaker?

I’ve been trying to find out and, let me tell you, there have been some who have found my enquiry offensive, but it is only by positing hypothetical circumstances that you can get to the bottom of the matter and find out how unprotected a dead body is in this country. You see, although the Sexual Offences Act (2003) outlaws the sexual penetration of a dead body, what is not outlawed? Cannibalism? Dismemberment? I cannot say with certainty, I don’t know that a lawyer can, either, nor yet can Stephen White of the Centre for Death and Society at the University of Bath, who recommends I read his “The Law relating to Dealing with Dead Bodies" in (2000) 4 Medical Law International 145, particularly pages 153-155. I’ll need to get to a university library to read this, so please feel free to beat me to it and tell me what he says. The outcome of my researches so far seems to be that there is very little you can’t do to a dead body.

In the US they have their Abuse of a Corpse law, which says: “A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities.” That’s a pretty good umbrella. We need something like that here.

In the meantime, what level of care can we expect from a UK undertaker? The answer is: highly variable. Why do they not present us with a detailed document, when we make arrangements, declaring their commitment to safeguard the dead person’s privacy, to conduct themselves respectfully and tell us precisely how they will do that? Because we don’t ask. Because we turn a blind eye. Because we just trust them to behave with decency. Even the Dead Citizen’s Charter did not see fit to address this, goodness knows why not.

Is this an area of concern? Oh, yes. In Tom Lynch’s words (nobody does it better) “The dead don’t mind, but the dead do matter.” Undertakers do not customarily perpetrate grossest outrages, but many are guilty of a host of grievous ones. How, for example, would you feel if your dead person had been used as the model for a training session in laying-out for visiting staff from a care home? How would you feel if you knew that your dead person had been laid out and dressed by some bloke while he laughed and joked with a colleague sitting in a corner of the mortuary eating his lunchtime sandwiches? How would you feel if he had been helped by a lad on work experience who went home and told his hushed mates all about it? The scope for disrespect, even abuse, does not end here, not by any means, let me tell you.

Attitude translates into conduct, but where conduct cannot be examined attitude can easily be falsified. So long as a bad undertaker can keep up a convincing smarm offensive in the front office, he or she can get away with all kinds of negligence and disrespect back in the mortuary. Commitment to best practice must be readily verifiable or it is worthless.

And so it is that the full extent of the reverence which my brilliant local undertaker Judi brings to her work will never be known, for all that she wins over families with her warmth and humanity. I feel for those families who go to some other local undertakers. If only they knew what they are letting their dead person in for.

Thus does best practice go unchecked and worst practice unpunished.

Is it time we had our own abuse of a corpse legislation in the UK which not only forbids conduct towards a dead body which would outrage ordinary family sensibilities, but which also lays down detailed minimum standards? I think it is. For all the difficulty the law might have in getting its head around the concept, the dead have rights, too.

I’d be glad to know what you think.