The case for ante-mortem planning
It is a fact that a man’s dying is more the survivors’ affair than his own.1
An individual’s ability to dictate the post-mortem fate of their body is limited. Donation of organs and other material for transplant or research purposes is permissible,2 but constitutes little more than a statutorily sanctioned expression of preference.3 Specific funeral directions also carry no weight in English law, and in many other countries with derivative legal systems.4 The person with the legal duty of disposal is not obliged to implement the deceased’s instructions; possessory entitlements to the dead include full decision-making powers over what form the funeral should take.
Yet, this legal stance ignores practical realities. Many people have strong opinions on what form their funeral should take, from the method of disposal (usually burial or cremation) and attendant rites, to the final resting place for their corpse or ashes. This chapter argues that the deceased’s own preferences should be paramount, and that the person entrusted with disposal should be obliged to carry out the deceased’s funeral instructions whenever possible. As well as facilitating ante-mortem planning, allowing an individual to make legally binding directions would ensure that these were the first point of reference for judges faced with conflicting claims to the dead.
Funeral instructions can be driven by reasons of sentiment or personal preference. For example, someone may want to be cremated rather than buried (or vice versa),5 or to have their ashes scattered in a particular place for sentimental reasons.6 Opting for a specific gravesite may also indicate a desire to be reunited with loved ones after death, such as being buried in the family plot,7 or may be aligned with notions of citizenship and belonging where the individual insists on having their corpse or ashes returned to their native homeland.8 Religious or cultural beliefs may also play an important role, with funeral rites reflecting traditions that the individual adhered to in life, and facilitating the transition to the spiritual afterlife.9
Funerals and their attendant rites can also be seen as posthumous representations of the deceased’s life and character, which create a shared social memory for everyone who attends the funeral.10 The fact that modern funerals with their emphasis on the life and attributes of the deceased are increasingly viewed as a “strategy for self-expression”11 can be another motivation for leaving specific instructions.12 These typically reflect some aspect of the deceased’s personality – for example, Hollywood icon Elizabeth Taylor insisted that she be 15 minutes late for her funeral as was her tradition in life.13 Of course, such requests are not exclusive to the rich and famous; more typical illustrations include someone who favoured an eco-friendly lifestyle insisting on green burial, or an individual requesting a personalised coffin, which reflects some particular aspect of their character.14
Despite the personal importance attached to them, however, setting out detailed funeral directions is no guarantee that they will be followed.
Funeral instructions are ineffective because of the conceptual difficulties posed by the common law rule that there is no property in a dead body15 and its application in a well-known nineteenth-century case. In Williams v Williams,16 the deceased’s will stipulated that his body be given to his friend, Eliza Williams, to be dealt with according to his instructions. A private letter directed her to burn the body; any expenses incurred were repayable from the estate. However, things did not go to plan when the deceased died and his wife buried him in Brompton cemetery. Three months later, Miss Williams (without notifying the deceased’s executors or his family) obtained a licence to disinter the remains and shipped them to Milan for cremation.17 In an action against the executors for expenses, Kay J held that these were not recoverable since the deceased’s directions could not be enforced:
[A] man cannot by will dispose of his dead body. If there be no property in a dead body it is impossible that by will or any other instrument the body can be disposed of.18
Nwabueze has rightly criticised the decision on the basis that the “critical question” of whether funeral directions are enforceable “was left almost completely unanswered”.19 However, like the ‘no property’ rule itself, Kay J’s dictum in Williams is now part of legal folklore: a will disposes of property on death, but if a corpse is not property it cannot be dealt with in this way. As a result, funeral instructions are simply precatory statements, which do not impose any legal obligation on those tasked with the funeral.20
Both the ‘no property’ rule and consequent ruling in Williams were adopted in other common law jurisdictions, with numerous Canadian, Australian and New Zealand authorities confirming that funeral instructions are not legally binding.21 Instead, the ultimate decision lies with the executor appointed by the deceased’s will or the presumptive administrator where someone dies intestate.22 There is a certain irony here; a dead body is not property, yet legal entitlements to dispose of it are allocated by the same succession law rules that oversee the post-mortem transfer of property. Where the deceased made a will it has been suggested that appointing an executor operates as a type of “surrogate autonomy”,23 especially where the choice of individual is influenced by their willingness to undertake specific funeral arrangements. If the deceased’s family insist on something else, the executor can assert a stronger legal entitlement to possession of the deceased’s remains and associated decision-making powers.24 However, there is nothing to prevent an executor from disregarding the deceased’s instruct ions when under pressure to implement something different;25 in these circumstances, the executor is entitled to follow the wishes of the surviving relatives against those of the deceased.26 The same basic principles apply on intestacy, where the presumptive administrator may comply with any non-testamentary directives, yet can equally ignore them and substitute something else.27
The situation would be the same where a pre-paid funeral plan contains specific disposal preferences.28 Despite assurances about ‘peace of mind’, such plans can only guarantee this in a financial sense. The contract itself is between the funeral company and the individual, and is activated on death. Thus the individual has no control over the actual performance of the contract, and whether or not their wishes are complied with depends once again on the actions of the personal representative. If he/she decides to comply with the deceased’s wishes, then this is the end of the matter. However, if the executor or presumptive administrator declines to follow the deceased’s specific requests (for example, by substituting cremation for burial, or opting for a different type of funeral ceremony under pressure from the deceased’s family), no legal steps can be taken to prevent this.29
In short, those entitled to possession of the deceased’s remains may (and often will) comply with funeral directions but are not legally obliged to do so. As Bryson J acknowledged in Privet v Vovk:30
[W]ishes expressed by a deceased person, whether in a testamentary document or otherwise, are not binding on the persons on whom the duty falls of disposing of the remains and will not be enforced by a court.31
However, there are ways of getting around this. Financial constraints play a role, since a personal representative is liable for any unreasonable funeral costs, or additional expenditure beyond that covered by a pre-paid funeral plan.32 And while an executor or presumptive administrator cannot be legally compelled to carry out the deceased’s wishes,33 the prospect of non-compliance may prompt others to challenge the funeral arrangements – for example, by invoking selected provisions of the European Convention on Human Rights34 or using s 116 of the Senior Courts Act 1981.35 In the English context, Burrows v HM Coroner for Preston36 is the strongest indication yet that the deceased’s views are an important factor when adjudicating funeral disputes,37 a sentiment that has been echoed in other recent cases both here and elsewhere. For example, in Hartshorne v Gardner38 the court indicated that “the deceased’s wishes are one of the relevant factors to be taken into consideration”,39 while McKechnie J in Ugle v Bowra & O’Dea40 suggested that “[t]he views of the deceased, though not decisive, should nevertheless be accorded considerable weight”.41 Meanwhile Elias CJ in the Supreme Court of New Zealand in Takamore v Clarke42 was highly critical of the existing position, because in “modern conditions” it was “unacceptable to say that the views of the deceased are views that can be ignored”.43 Yet, while the deceased’s wishes are an increasingly important reference point, there is no legal obligation to uphold them under the current common law framework.
American courts have traditionally allowed individuals to direct the postmortem fate of their remains, taking the view that the wishes of the dead are “paramount to all other considerations”.44 One possible explanation stems from the fact that testamentary freedom is much more entrenched in the United States than elsewhere;45 funeral instructions could be viewed as a logical extension of this, in a country that jealously safeguards the personal liberties and freedoms of the individual. However, much more important is a long-standing judicial willingness to recognise limited proprietary interests in dead bodies.46 By the end of the nineteenth century, the English ‘no property’ rule was regarded as a “juridical enigma”47 by American courts. In Pierce v Proprietors of Swan Point Cemetery,48 one of the leading authorities, Potter J accepted that “the body is not property in the usually recognized sense of the word” yet labelled it as a “sort of quasi property, to which certain persons may have rights, as they have duties to perform towards it arising out of our common humanity”.49 Subsequent cases adopted this reasoning, with the duty of disposal falling on the deceased’s spouse followed by next-of-kin (children, then parents, then siblings etc) in order of inheritance entitlement.50
In some ways, this is similar to the English position: regardless of whether the right is labelled quasi property, the practical outcome is the same since it falls short of full property, is for a limited purpose only51 and vests in designated kin.52 However, this relational hierarchy only comes into play where the deceased has failed to make their wishes known.53 As Benedict J acknowledged in Cooney v English,54 American common law “gives great weight, if not controlling force, in such matters to the wishes of the deceased”.55 This is still the position today;56 for example, in Kasmer v Guardian ship of Limner57 the court ordered cremation of the deceased’s corpse in accordance with his wishes, despite religious objections from surviving relatives,58 while in Cottingham v McKee59 the executor was allowed to exhume and cremate the deceased’s body against the wishes of the next-of-kin where the dead man’s will had specified this method of disposal.60 Courts have occasionally weighed the deceased’s preferences against other competing interests, and in particular the views of a surviving spouse or close kin; however, funeral instructions are typically prioritised in conflicts between the living and the dead.61
The fact that the body is not property in any strict legal sense means that an individual is not actually bequeathing their remains,62 and need not comply with testamentary formalities.63 However, a will is only one option and American courts have upheld funeral instructions contained other written documents,64 or occasionally based on verifiable oral statements65 – even if these contradict prior written directives. A good illustration is In re Scheck’s Estate 66 where the deceased’s children interred their mother’s body in a cemetery in New York state (the mother had repeatedly said she wanted to be buried there and purchased a plot), despite her will – executed years earlier – stipulating burial in Palestine where she had been living with her (now estranged) husband.67 As a general rule, primary responsibility for upholding the deceased’s directions falls on the personal representative, though courts have allowed other next-of-kin68 and those with close emotional ties to the deceased69 to challenge funeral arrangements if these individuals claim to represent the deceased’s wishes.
A significant number of US states have codified the common law position by enacting ‘mortal remains statutes’, allowing an individual to direct the posthumous disposal of their remains with a default list of authorised decision-makers where the deceased’s wishes cannot be ascertained or carried out.70 Most of these statutes require written instructions, whether contained in a will, pre-paid funeral contract, designated power of attorney or health care directive.71 Some also allow the deceased to nominate an agent or proxy to take charge of the funeral arrangements, with comprehensive statutory forms authorising the appointment and facilitating specific directives.72 Although state dependent, the wishes of the deceased are generally paramount.73
Several other common law jurisdictions also recognise certain types of funeral instructions. In Australia, laws in both Queensland and the Australian Capital Territory uphold an individual’s signed instructions to be cremated, or not to be cremated.74 However, the Canadian province of British Columbia leads the way in granting an individual control over their own funeral arrangements. Section 5 of the Cremation, Interment and Funeral Services Act 2004 Act lists certain individuals who are entitled to control the disposition of the deceased’s remains, and instructs courts to consider “any reasonable directions given by the deceased respecting the disposition of his or her … remains or cremated remains” when resolving funeral disputes.75 However, s 6 goes one step further:
A written preference by a deceased person respecting the disposition of his or her human remains or cremated remains is binding on the person who under section 5 … has the right to control the disposition of those remains if
(c) compliance with the preference would not be unreasonable or impracticable or cause hardship.76
In other words, the 2004 Act prioritises funeral instructions contained in a will or pre-paid funeral contract; the person with the legal right of disposal under s 5 is expected to comply with them.77
A number of civil law jurisdictions also allow an individual to dictate the fate of their remains. For example, Article 42 of the Civil Code of Quebec 1991 allows “a person of full age … [to] determine the nature of his funeral and the disposal of his body”,78 though there is no requirement that this is set out in writing.79 Likewise, both France and Spain also focus on the deceased’s funeral preferences if families cannot agree.80 The origins can probably be traced back to Roman law, where the deceased’s heirs had to respect funeral instructions set out in a will or written testament.81
A number of arguments can be made for putting a legal mechanism in place in England and Wales (and elsewhere), which allows people to make binding directions about the disposal of their remains.
1. Fallacy of the ‘no property’ rule
Funeral instructions are ineffective because of the doctrinally suspect ‘no property’ rule – even if its consequences are more apparent than real. The law already recognises limited property rights in dead bodies, with possessory entitlements vesting in certain individuals on death.82 This is not the problem; it is the fact that the deceased cannot dictate how and by whom such rights should be exercised. More importantly, upholding funeral instruct ions is not actually dependent on dead bodies being classed as property; all that is needed is an effective legal mechanism for allowing an individual to direct the posthumous fate of their remains.
2. ‘It’s what the deceased wanted’
The core value of autonomy is important here. Allowing an individual to dictate the posthumous fate of their remains would mirror existing rights to make lifetime decisions that the law recognises on death.
From a succession law perspective, a person enjoys significant control over the post-mortem destiny of their property, and the principle of testamentary freedom (regarded as the hallmark of common law legal systems) ensures that the wishes of the deceased are usually paramount.83 Hernández places this firmly within an individualistic framework premised on autonomous choices:
[A]utonomy is the foundation for many rights to control one’s life and one’s possessions, including the law of wills.… [F]reedom of testation is a fundamental value … because it accords with the strong human desire to exert control over one’s own property.84
Drawing on this general theme, Sperling has argued for a similar right in relation to the body:
If by enforcing a will what we care deeply about is respecting the decedent’s prior wishes and autonomy, then it is not clear why this principle should be defeated in situations where the decedent’s wishes are concerned with the disposal of her own body. On the contrary, it seems unambiguous that a person’s body is one of the most precious things about which she cares, certainly more than her real property.85
An individual has sole decision-making authority over their body while alive.86 For example, the basic concept of patient autonomy prevails in the medical law context,87 and specific treatments can be refused even if their effects would be life-saving or prolonging. In the transition from life to death, the law allows competent adults to exert greater control over key decisions. The growing use of advance directives and lasting powers of attorney are both good examples88 – placing an increased emphasis on self-deter mination that could equally extend to deciding the fate of the post-mortem body. More importantly, situations already exist in which an individual can make autonomous bodily choices that transcend death, such as posthumous reproduction and organ donation.89 Why, then, should the law ignore funeral instructions?
Harris and others have argued that autonomy ceases on death, and that the law should not recognise posthumous rights.90 Yet, while death results in an inevitable loss of sovereignty, what we are talking about here is a logical and morally intuitive extension of an individual’s right to self-determination in life. Upholding funeral instructions validates a conscious choice that the deceased made while alive, in the same way as the law respects ante-mortem directions about the disposal of property or the fate of certain body parts after a person’s death. Describing an individual’s interest in prearranging certain post-mortem events as a form of “prospective autonomy”,91 Cantor goes on to describe funeral directions as being part of a “person’s prerogative to shape his or her memory picture” – something which he also places within the right to self-determination.92 Closely aligned with this is the concept of personhood. The increased power for individuals to control their lives up to the moment of death could be seen as part of a collective personhood interest,93 as could the power to control certain aspects of what happens to the body after death. Most people probably expect that their funeral preferences will be respected. According to Sperling, these ante-mortem wishes and desires are “so important to the living person that the meaning attached to them is … conditioned upon their being fulfilled after the person is dead”.94 And, as a means of self-expression and of cultivating one’s own posthumous image, allowing others to frustrate these directions is to inflict harm on that person:
[O]ne can argue that people define themselves in terms of their physical selves, and so invasion of the body after death, especially through acts performed contrary to a person’s prior wishes regarding disposal of her body, injures the personality of this person and the image she would have wanted after death.95
Meanwhile, Bray has placed such interests within broader constructs of human dignity and respect for the wishes of others:
Corpses are … central to our personhood and identity … [S]howing respect to the dead and carrying out burial arrangements in accordance with the deceased’s wishes is a way of according dignity to all human beings, because death is the one thing all individuals have in common. Because interests in corpses are critical to the sense we have of ourselves as individuals, families and communities, under a personhood analysis these issues should be protected …96
3. Human rights arguments
Specific provisions of the European Convention on Human Rights may influ ence family funeral disputes.97 However, they could also bolster arguments for allowing an individual to dictate the posthumous fate of their remains and, in the event of a dispute, for granting possession of the corpse or any post-cremation ashes to the person intent on complying with such directions. While it is unclear whether Convention rights alone would persuade a court to rule decisively on the issue, case law increasingly emphasises the wishes of the dead.
(a) Precatory preferences and Article 8
Personal autonomy is an important interpretative element of Article 8(1) and its right to respect for private and family life.98 With this in mind, Article 8(1) could encompass funeral instructions based on sentiment or mere personal preference99 – for example, directions to ‘bury me in the family plot in the local cemetery’ or to ‘cremate my remains and scatter my ashes in the Lake District’. A direct authority on this is X v Federal Republic of Germany100 in which the European Commission suggested that the applicant’s request to have his ashes scattered on his own land (rejected by authorities in Hamburg) was a means of expressing his personality and was so closely related to his private life that it fell within Article 8(1). Thus, the idea of private life as an inner-circle within which individuals may live their personal lives as they choose101 would appear to encompass death-related directions. However, from a domestic law perspective, perhaps the strongest indication that the deceased’s preferences might be determinative under Article 8(1) comes from Burrows v HM Coroner for Preston.102 The fact that the uncle was intent on carrying out the deceased’s wishes in this case was a powerful factor in the court’s decision to disregard the mother’s common law entitlement to her son’s remains. According to Cranston J:
One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law.… It is quite clear from the jurisprudence of the European Courts [sic] of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account.103
Of course, the rights guaranteed by Article 8(1) are qualified by Article 8(2).106 For example, an individual’s request to be buried in a particular cemetery might be defeated because the cemetery is full, while directions to ‘burn my corpse in the middle of a forest in front of my family and friends’ might be construed as contrary to public health and morality, as well as being vulnerable to environmental and fire safety concerns.107 In X v Federal Republic of Germany108 the Commission concluded that, since the legislation which guided the Hamburg authorities’ decision was intended to protect the public interest, this was consistent with Article 8(2) and justified any infringement of the applicant’s Article 8(1) rights.
Burial instructions that stem from the deceased’s spiritual or cultural beliefs could come within Article 9(1) of the Convention and its right to freedom of thought, conscience and religion – for example, where a devout Catholic insists on being buried with attendant funeral rites, or a person of Aboriginal descent wants to be buried in a manner that respects the spiritual and cultural values of their indigenous community. The fact that Article 9(1) embraces a wide range of convictions and philosophies (including non-religious beliefs)109 means it could also be invoked where an individual has requested a secular funeral.
The impact of Article 9(1) on the fate of the dead has been raised in a number of English exhumation cases, where courts have been swayed not only by the beliefs of the family but by those of the deceased as well.110 However, restrictive interpretations on what amounts to ‘manifesting’ a religion or belief under Article 9(1)111 may limit the scope for upholding funeral directions. In X v Federal Republic of Germany 112 the applicant alleged that preventing him from having his ashes scattered on his own land violated Article 9(1) by denying the right to practise his non-Christian beliefs. Rejecting this claim, the Commission held that scattering ashes on one’s own land was not a discernible practice that manifested a belief.113 Likewise, the fact that the applicant would have to be buried in a public cemetery did not violate Article 9(1) since he was not obliged to have a religious funeral or a tomb decorated with Christian symbols.114 Article 9(2) could also come into play, whereby state interference is permission when “prescribed by law” or deemed necessary for reasons of “public safety” or “the protection of public order, health or morals”. These qualifications were discussed at length in the first instance decision of Ghai v Newcastle City Council.115
Having ruled that open-air cremations were prohibited under Cremation Act 1902 and accompanying regulations,116 Cranston J had to consider whether this was inconsistent with Ghai’s right to freedom of religion under Article 9(1). The court accepted that the claimant’s desire for an outdoor funeral pyre stemmed from and was a manifestation of his religious beliefs,117 regardless of conflicting evidence as to whether this was a core tenet of the Hindu faith. Thus prevailing cremation laws constituted an interference with Ghai’s right to freedom of religion under Article 9(1). As to whether this was justified under Article 9(2), Cranston J noted that the claimant already had significant freedom to manifest his beliefs; the only restriction was the requirement that cremation took place in a building, and the vast majority of Hindus living in Britain did not consider open-air funeral pyres to be essential from a religious perspective.118 Safety concerns aside,119 the most important consideration was the protection of public morals as well as the rights and freedoms of others. The court had to consider how members of the public might react to open-air cremations; even if not witnessed directly by mourners and passers-by, most people would probably be offended by the fact that bodies were being disposed of in this way.120 Balancing individual rights against the interests of other citizens was a matter for elected representatives who had decided firmly in favour of the public interest under existing cremation laws. The interference with Ghai’s funeral wishes was, accordingly, justified under Article 9(2).121
(c) Public statements and Article 10
The right to freedom of expression under Article 10(1) could be invoked here since, when setting out specific funeral directions, the deceased is not only communicating personal preferences but asserting his/her own values and individuality.122 However, Convention jurisprudence suggests that Article 10(1) is concerned with imparting views to the wider community and society as whole,123 rather than communicating a personal desire to relatives and close friends. This provision may be of assistance where the deceased prescribes a specific type of funeral or graveside eulogy as a means of making a public statement – for example, the mother of a soldier killed in battle directing that the body be brought in a funeral procession past 10 Downing Street as a protest against the Prime Minister sanctioning that particular conflict.124 However, most funeral directions would fall short of this high threshold and be outside the scope of Article 10(1).125
(d) Posthumous human rights and competing entitlements?
Invoking Convention rights to safeguard funeral directions raises two fundamental issues. The first is whether the Convention can actually be used a means of upholding the rights of the dead, given its primary function as an instrument that safeguards the rights of living.126 Judicial statements in a number of cases suggest that a human rights framework is inapplicable to dead bodies, one of the most emphatic rejections coming from the judgment of Peter Smith J in Ibuna v Arroyo:127
I confess that I have some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard.… [I]n my view there is no room further [sic] for any application of any human rights concepts to protect the right of the body to speak from death …128
However, most of the cases discussed immediately above would seem to dispel this notion in the context of funeral arrangements, and the post-mortem rights of the individual may still be operative.129 At a more basic level, allowing an individual to stipulate the posthumous fate of their remains is arguably in keeping with the ethos of the Convention (and analogous instruments) since the “dignity and autonomy of the individual are fundamental values of legal systems that seek to honour and uphold human rights”.130
Second, while funeral instructions are predicated on the deceased’s wishes, surviving relatives could argue that these directions infringe their Convention rights. Case law suggests a legitimate family interest in what happens to the body of a dead relative,131 which raises the question of whether courts would be willing to uphold the deceased’s preferences where these conflicted with those of the deceased’s family. For example, would a judge compel a family member who opposed cremation on religious grounds (and could possibly invoke Article 9(1) in support of this) to organise one in keeping with the deceased’s instructions that his/her remains be dealt with in this way (such directions potentially falling within the scope of Article 8(1))? This clash of rights between the living and the dead is something that arises frequently in bodily disposal contests – and not just from a human rights perspective. However, the decision in Burrows v HM Coroner for Preston132 is the strongest indication yet that courts will be swayed by the deceased’s wishes when deliberating an alleged conflict of rights under the Convention.
4. Reducing the potential for funeral disputes
Funeral disputes wreak havoc within families, inflicting extensive and often irreversible emotional damage.133 While such cases can never be completely avoided, upholding funeral instructions might discourage adversarial litigation if the parties are aware that courts will simply rule in favour of the person who is intent on carrying out the deceased’s wishes. Meanwhile, an individual who envisages post-mortem conflict – for example, between first and second families, or on grounds of divergent religious or cultural values – can try to avoid this by setting out their preferences in advance.134 Arguing in favour of a legislative framework that safeguards the wishes of the deceased, Naguit has suggested that:
Not only [would] such provisions give people more confidence that their intentions will be carried out after death, but they also should help to eliminate … protracted disputes among survivors.… Certainty in the law is vital to ensuring that, when a decedent is finally laid to rest, she truly is able to rest in peace.135
Even where families are not divided, funeral directions can act as a guide when numerous decisions have to be made at an emotionally difficult time.
Several arguments can be made against upholding funeral directions, the first two raising the most substantive issues.
1. ‘Dead people don’t have rights’
Death results in a loss of autonomy, an inevitable ceding of control as the individual ceases to exist as a living being and a legal entity.136 As Harris has argued:
[A]utonomy involves the capacity to make choices, it involves acts of the will and the dead have no capacities – they have no will, no preferences, wants nor desires, the dead cannot be autonomous and so cannot have their autonomy violated.137
On this basis, funeral instructions serve no real purpose; the sentiments and preferences of the dead are immaterial because they no longer have rights that can be violated.
However, not everyone subscribes to the view that a person’s rights and interests automatically expire when they do. Emphasising the core values of autonomy and human dignity, Smolensky has suggested that the dead, “although unable to make real-time choices, are capable of being legal right-holders”;138 recognising certain posthumous legal rights not only adheres to the principle of self-determination but “gives the dead significant moral standing … [where] lawmakers are driven by a desire to treat the dead with dignity”.139 Meanwhile, others have addressed the issue on the basis of antecedent rights that persist beyond an individual’s demise, building on the dual concepts of prospective autonomy and anticipatory choices noted earlier.140 For example, Young has claimed that the living “have an interest in what happens to their bodies after they die, even though those people will no longer exist at the relevant time”,141 while Sperling highlights the ability to express one’s own character and values in the bodily disposal context as an important aspect of the right to self-determination:
Autonomy is first and foremost the moral privilege of a person to cultivate and nurture her particular vision of herself as a human being. It is the prerogative of shaping the images, conceptions and recollections which other persons have or will have of her regardless of whether she will physically witness those images, conceptions and recollections.142
These and similar narratives suggest that the law is not conferring positive rights on the dead; certain posthumous interests have their origin in the ante-mortem individual. Closely aligned with this are notions of harming the dead – a subject of intense philosophical debate. While some have rejected the idea that the dead can suffer harm,143