The law protects posthumous bodily integrity by allowing people to decide what will happen to their bodies after death. This article asks whose rights these laws intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more consistent with an approach that views the dead as rights-holders versus only the living (or vice versa), this may help elucidate why we protect posthumous bodily integrity. Third, if one has an opinion about whether the dead are capable of having rights, this has implications for how one thinks laws protecting posthumous bodily integrity should be structured. For example, a revision to anatomical gift legislation is proposed that is more easily justified than current legislation if one views the dead as incapable of having rights.
"The Right to Posthumous Bodily Integrity and Implications of Whose Right it is,"
Marquette Elder's Advisor: Vol. 14:
2, Article 3.
Available at: https://scholarship.law.marquette.edu/elders/vol14/iss2/3