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Retained organs: ethics and humanity

Published online by Cambridge University Press:  02 January 2018

Margaret Brazier
Margaret Brazier*
Affiliation:
School of Law, University of Manchester
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Abstract

This paper responds to John Harris's vigorous analysis of the ethical principles involved in organ retention. The author contends that Harris overlooks the context in which revelations about organ retention came about in the UK. He pays insufficient regard to deeply held cultural and religious beliefs, and does not fully address the claims of the living to determine the fate of their body after death, or the interests of bereaved families in laying a beloved relative to rest. The paper argues that the fundamental principle governing removal and retention of body parts after death must rest on a strong presumption that such body parts should be removed only with the suficient consent of the deceased or his family.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 4 , November 2002 , pp. 550 - 569
Copyright
Copyright © Society of Legal Scholars 2002

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References

1. See J Harris ‘Law and regulation of retained organs: the ethical issues’ (2002) 22 LS 527.

2. Unless we (or our executors) opt for ancient techniques of mummification or the modem technology of cryonic preservation.

3. In conforming with Zoroastrian tradition.

4. Harris, n 1 above, at 548.

5. There is a rich literature on the psychological impact of bereavement, especially sudden bereavement followed by autopsy. The long-term effects of lack of care for the bereaved are well recognised: see, inter alia, RI Clyman, C Green et al ‘Issues concerning parents after the death of their newborn’ (1980) 8 Critical Care Med 215; J L DeFrain, J Martens et al ‘The psychological effects of a stillborn on surviving family members’ (1990) 22 J Death and Dying 81; S A Solomon and K H R Adams ‘Attitudes of relatives to autopsies of elderly patients’ (1993) 22 Age and Ageing 205.

6. The Royal Liverpool Children's Inquiry Report (the Redfern Report) (London: The Stationary Office, 2001).

7. Harris, n 1 above, at 528.

8. See Learningfrom Bristol The Report of the Public Inquiry into children's heart surgery at the Bristol Royal Infirmary 1984–95 (Cm 5207(1), 2001).

9. Bristol Inquiry Interim Report Removal and retention of human material (2000).

10. Bristol Inquiry Interim Report, n 9 above, para 4.

11. Although the Department of Health now interprets the 1961 Act to require ‘properly informed consent by relatives’; see Interim Statement on the Use of Human Organs (2002).

12. Fully explored in P D G Skegg ‘The Use of Corpses for Medical Education and Research: the Legal Requirements’ (1991) 31 Med Sci L 345.

13. Bristol Inquiry Interim Report, n 9 above, para 42.

14. Bristol Inquiry Interim Report, n 9 above, para 44.

15. Bristol Inquiry Interim Report, n 9 above, para 39.

16. See Skegg, n 12 above.

17. Bristol Inquiry Interim Report, n 9 above, para 33.

18. Redfem Report, n 6 above.

19. 362 HC Official Report (6th series) col 176, 30 January 2001. Outside Parliament, Alan Milbum described the Redfem Report as the most shocking he had ever read: The Times, 29 January 2001.

20. Redfern Report, n 6 above, p 388.

21. Redfern Report, n 6 above, p 400.

22. Redfern Report, n 6 above, p 436.

23. Redfern Report, n 6 above, p 396.

24. Department of Health Report of a Census of Organs and Tissue Retained by Pathology Services in England (London: Department of Health, 2001)Google Scholar. And see Retained Organs Commission Organ Retention at Central Manchester and Mmhester Children's University Hospitals Trust (July 2002). available at http://www.nhs.uWretainedorgans/index.htm.

25. Bristol Inquiry Interim Report, n 9 above, para 32.

26. For an account of controversy surrounding organ retention in New Zealand, see G D Jones Speaking for the Dead (Aldershot: Ashgate, 2000).

27. Scottish Executive Final Report of the Independent Review on the Retention of Organs at Post Mortem (2001). The Scottish concern about the language of consent is not shared by the Northern Ireland Inquiry: see the Report of the Human Organ Inquiry (2002).

28. Scottish Executive, n 27 above, para 11.

29. Save, of course, in the context of the extraordinary series of decisions relating to adolescent autonomy (or lack thereof): see Re W (a minor) (medical treatment) [1992] 4 All ER 627; discussed in M Brazier and C Bridge ‘Coercion or Caring: analysing adolescent autonomy’ (1996) 16 LS 84.

30. Exactly who would enjoy such authority is a complex question. Perhaps where the deceased died in hospital, the NHS Trust would have such authority? If the coroner required a post-mortem, the hospital would temporarily lose custody, custody which would revert to it once the coroner was functus officio. But what of the deceased who died at home? Would his executors be legally obliged to offer his body to their local NHS Trust?

31. Note, however, that the use of bodies under the Anatomy Act 1984 is, unlike the use of retained body parts, closely regulated by the Inspector of Anatomy.

32. Hams, n 1 above, at 540–541.

33. So Beauchamp and Childress categorise truth-telling as an action that is right and obligatory: see Beauchamp, T L and Childress, J F Principles ofBiomedical Ethics (Oxford: Oxford University Press, 5th edn, 2002) pp 39–40.Google Scholar

34. Lamm, M The Jewish Way in Death and Mourning (New York, Jonathan David, 1998) p 10.Google Scholar

35. Lamm, n 35 above, p 244.

36. See Jakobovits, I Jewish Medical Ethics (New York: Bloch, 1975) pp 282–283 Google ScholarPubMed.

37. Sheikh, A and Gartrad, A R Caring for Muslim Patients (Abingdon: Radcliffe Medical Press, 2000) p 107.Google Scholar

38. See Jakobovits, n 36 above, pp 278–279.

39. Sheikh and Gartrad, n 37 above, p 107.

40. Jakobovits, n 36 above, p 283.

41. St George's NHS Hospital Trust v S [1998] 3 All ER 613, CA.

42. Lamm, n 34 above, p 10.

43. See Richardson, R Death, Dissection and Destitute (Chicago: Chicago Press, 2nd edn, 2000) pp 280–281 Google Scholar.

44. See N Naffine ‘When does the legal person die? Jeremy Bentham and the “Auto-Icon’” (2000) 25 A J L and Philosophy 79.

45. See Parry and Clark The Lao of Sucession R Kenidge (ed) (London: Sweet & Maxwell, loth edn, 1996) pp 121–164.

46. My grieving daughter would have a stronger claim being able to seek provision at a level akin to a divorced spouse. My nieces would have no claim at all unless maintained wholly or partly by me at the time of my death.

47. Derived, it seems, from Sir Edward Coke CJ in 1644: 3 Co-Inst 203; see A Grubb ‘“I, Me, Mine”: Bodies, Parts and Property’ (1998) 3 Med L Int 299 at 307–308.

48. [1998] 3 All ER 741 at 749. Rose LJ expressly acknowledged the ‘questionable’ historical origin of the doctrine.

49. See P Matthews ‘Whose Body? People as Property’ (1983) CLP 193; P Matthews ‘The Man of Property’ (1995) 3 Med L Rev 237; P D G Skegg ‘Human Corpses, Medical Specimens and the Law of Property’ (1975)4 Anglo-Am LR 412.

50. Matthews (1995), n 49 above, at 254.

51. See Richardson, n 43 above, pp 52–75.

52. See Rees v Hughes [1946] KB 517. The intricacy of the law relating to custody and disposal of dead bodies is mind boggling: see S White ‘The Law Relating to Dealing with Dead Bodies’ (1999) 4 Med L Int 145.

53. Williams v Williams (1882) 20 Ch D 659. Note though that Pany and Clark, n 45 above, acknowledge the moral force of such directions.

54. Early cases assume a right to a Christian burial; see White, n 52 above, at 149–153.

55. I could indeed create a trust to enforce my directions that such Masses be said.

56. [1998] 3 All ER 741 at 749–750, CA.

57. At 750.

58. Doodeward v Spence (1908) 6 CLR 406.

59. See Bristol Inquiry Interim Report, n 9 above, para 64.

60. For discussion of possible criminal offences committed if something less than a body is returned, see Grubb, n 47 above; and White, n 52 above.

61. In addition to the literature cited above, see J W Harris ‘Who Owns my Body?’ (1996) 16 OJLS 55; Harris, J W Property and Justice (Oxford: Oxford University Press, 1996)Google Scholar; Nuffield Council on Bioethics Human Tissue: Ethical and Legal Issues (London: 1995); D Morgan ‘Where do I own my body (and why?)’ in D Morgan Issues in Medical Law and Ethics (London: Cavendish, 2001) p 83; J K Mason and G T Laurie ‘Consent or property: Dealing with the body and its parts in the shadow of Bristol and Alder Hey’ (2001) 64 MLR 710; L Skene ‘Property rights in human bodies, body parts and tissue; regulatory contexts and proposals for new laws’ (2002) 22 LS 102.

62. See, for example, M Radin ‘Market-Inalienability’ (1987) 100 Harv LR 1845 (yes); N Duxbury ‘Do Markets Degrade?’ (1996) 59 MLR 331 (no).

63. Cole v Turner (1704) 6 Mod 149, per Holt CJ.

64. Collins v Wilcocks [1984] 1 WLR 1172 at 1177, per Robert Goff LJ.

65. Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, CA.

66. 3 B1 Comm 120, cited in Clerk & Lindsell on Torts (London: Sweet & Maxwell, 18th edn, 2000) para 13.01.

67. See, for example, Rogers, W V H (ed) Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 15th edn, 1998) p 65 Google Scholar.

68. See Brazier, M and Murphy, J (eds) Street on Torfs (London: Butterworths, 10th edn, 1999) pp 203–210.Google Scholar

69. R v Ireland [1997] 4 All ER 223.

70. O'Neill, O Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press, 2002) p 145.CrossRefGoogle Scholar

71. Except perhaps where research seeks a healthy (elderly) brain as a control to compare, for example, with the brain of a person who dies of Alzheimer's Disease.

72. See M Brazier ‘Organ Retention and Return: Problems of Consent’ (2002) 28 J Med Ethics (forthcoming).

73. A dilemma eloquently explored by D Knowles ‘Parental Consent to the Post-Mortem Removal and Retention of Organs’ (2001) 18 J Applied Philosophy 215.

74. In the context of family requests for information about organ retention and return of organs, where disagreements within families pose equally difficult questions, see the Guidance from the Retained Organs Commission, available at http://www.nhs.uk/retainedorgans/index.htm.

75. Department of Health Human Bodies, Human Choices The Law on Human Organs and Tissue in England and Wales: A Consultation Report (2002), available at http://www.doh.gov.uk/tissue.

76. Scottish Executive, n 21 above.

77. W Shakespeare Romeo and Juliet, Act 2, Scene 11.

78. Department of Health, n 75 above, p 52 (Q9A).