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Dead, but not buried: bodies, burial and family conflicts

Published online by Cambridge University Press:  02 January 2018

Heather Conway
Heather Conway*
Affiliation:
School of Law, Queen’s University Belfast
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Abstract

While recent public attention has focused on disputes concerning the fate of the dead such as the Bristol and Alder Hey organ retention scandals, this paper considers a much less publicised area of dispute which has nevertheless generated a significant amount of case law and potentially affects a much wider proportion of society. The paper looks at conflicts which arise when relatives cannot agree on how to bury their dead, the motives behind such disputes and the factors which influence their resolution. It examines the legal framework which has been applied by courts to date, proposes alternative solutions to this framework and questions the potential impact of the Human Rights Act 1998 on family burial conflicts.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 3 , September 2003 , pp. 423 - 452
Copyright
Copyright © Society of Legal Scholars 2003

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References

1. Trans H T Lowe-Porter (1924) ch 6, p 532.

2. The reports of the respective inquiries are located at http://www.bristol-inquiry.Org.uk/index.htm and http://www.rlcinquiry.org.uk/.

3. For an overview, see L Skene’ Proprietary Rights in Human Bodies, Body Parts and Tissue: Regulatory Contexts and Proposals for New Laws' (2002) 22 LS 102 at 110–115 and the sources cited therein.

4. See Skene, n 3 above, as well as J Harris’ Law and Regulation of Retained Organs: The Ethical Issues' (2002) 22 LS 527; and M Brazier ‘Retained Organs: Ethics and Humanity’ (2002) 22 LS 550. See further K Mason and G Laurie ‘Consent or Property: Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey’ (2001) 64 MLR 710 and J Bridgeman ‘Learning from Bristol: Healthcare in the 21 st Century’ (2002) 65 MLR 241.

5. For convenience, the term ‘burial’ is used throughout this paper to denote the disposal of human remains, either by interment or by cremation (irrespective of whether the latter is followed by committal of the ashes). There are other permissible methods of dealing with a dead body - see the discussion in S White ‘The Law Relating to Dealing With Dead Bodies’ (2000) 4 Med L 1 145 at 153–155. However, the focus throughout this paper is on interment and cremation as the most common methods of disposing of a corpse, and featuring in most family burial conflicts.

6. While the focus throughout this paper is on family conflicts surrounding burial, these are not confined to the deceased's relations. The recent dispute over the remains of Edward MacKenzie, a homeless tramp whose embalmed remains were found in the Plymouth studio of controversial artist Robert Lenkiewicz provides a good illustration. Having made a pact with the tramp to embalm his body rather than hand it over to the local authority for burial, Lenkiewicz subsequently thwarted several attempts by the local council to recover the remains. Following Lenkiewicz's death in 2002, the local authority once again tried to claim the embalmed corpse against the Lenkiewicz Foundation, who asserted that it was entitled to retain the body as a work of the deceased artist - see ‘Tramp's Embalmed Body Leaves Problem for Coroner’ Guardian, 12 October 2002.

7. Haynes' case (1614) 12 Co Rep 113; Dr Handyside's case (1749) 2 East PC 652; R v Lynn (1788) 2 TR 733; Re Sharpe (1857) Dears and Bell 160; and R v Price (1884) 12 QBD 247.

8. Likewise, a corpse cannot be seized by the deceased's creditors for the purposes of discharging his or her debts: R v Fox [1841] 2 QB 246.

9. The commission of which both presuppose the existence of property: Theft Act 1968, s 1(1) and Criminal Damage Act 1971, s 1. However, the position may be different in Scotland as a result of the decision in HM Advocate v Dewar (1945) SLT 114, the High Court of Justiciary suggesting that dead bodies are capable of being stolen before burial.

10. (1882) 20 Ch D 659 and approved more recently in Holtham v Arnold [1986] 2 BMLR 123; and Saleh v Reichert (1993) 104 DLR (4th) 384. For an account of the circumstances giving rise to the decision in Williams, see S White’ A Burial Ahead of Its Time? The Crookenden Burial Case and the Sanctioning of Cremation in England and Wales' (2002) 7 Mortality 171.

11. As in Holtham v Arnold [1986] 2 BMLR 123 (discussed at text to n 26 below); and Milanka Sullivan v Public Trustee (24 July 2002, unreported), Supreme Court of the Northern Territory (see n 94 below).

12. See the comments of Cameron QC, Dean of the Arches, in Re Blagdon Cemetery [2002] 3 WLR 603.

13. R v Newcomb (1898) 2 CCC 255. See further the comments of Scott LJ in Rees v Hughes [1946] KB 517 at 523–524.

14. See Williams v Williams (1882) 20 Ch D 659; and Murdoch v Rhind [1945] NZLR 425. Executors are entitled to possession of the deceased's remains even before the grant of probate: Buchanan v Milton [1999] 2 FLR 844.

15. See Dobson v North Tyneside Area Health Authority [1996] 4 All ER 474; Brown v Tulloch (1992) 7 BPR 15101; and Smith v Tamworth City Council (1997) 41 NSWLR 680.

16. Administration of Estates Act 1925, s 46. Unlike executors, personal representatives do not take title from the date of death, but from the grant of letters of administration which will be at least seven days, or 28 days in the case of a surviving spouse due to the survivorship stipulation in s 46(2A) of the 1925 Act. While Dobson v North Tyneside Area Health Authority [1996] 4 All ER 474 suggests that personal representatives may be unable to claim the deceased's remains before the grant of letters of administration, in Holtham v Arnold [1986] 2 BMLR 123 (see text to n 26 below) Hoffman J entrusted the funeral arrangements to the deceased's estranged wife as the person who was due to be granted letters of administration in respect of her husband's estate. The Australian cases of Brown v Tulloch (1992) 7 BPR 15101 and Meier v Bell (3 March 1997, unreported), Supreme Court of Victoria, go further in suggesting that, notwithstanding the absence of a formal application, the duty to bury nevertheless falls on the highest ranking person who would be entitled to letters of administration upon making such a request.

17. R v Vann (1851) 2 Den 325; and Grovey v Moore [1935] NZLR 739. If the child's parents are dead, the persons with responsibility for the child have the duty to bury: Watene v Vercoe [1996] NZFLR 193.

18. Buchanan v Milton [1999] 2 FLR 844.

19. R v Gwynedd County Council, ex p B [1992] 3 All ER 317.

20. R v Stewart (1840) 12 Ad & El 773.

21. Public Health (Control of Diseases) Act 1984, s 46.

22. This right to possession extends to the deceased's ashes following cremation and to determining their ultimate fate - Re Korda (1958) Times, 23 April; and Robinson v Pinegrove Memorial Park (5 June 1986, unreported), Supreme Court of New South Wales. Moreover, the proposition based on these cases is statutorily buttressed in England and Wales by reg 16 of the Regulations as to Cremation 1930, SI 1930/1016, as substituted by the Cremation Regulations 1952, SI 1952/1568, which requires an application for cremation to be made by an executor or the nearest surviving relative of the deceased unless a satisfactory explanation is given for it being made by some other category of person, and obliges the crematorium to return the ashes to the applicant. Where the deceased was interred in the ground, it has been suggested that the right to possession extends beyond burial, thus preventing an aggrieved relative from immediately disinterring the remains and reburying them elsewhere: Waldman v Melville (1990) 65 DLR (4th) 64 (although under English law, the relative would have to persuade the Home Office to grant an exhumation licence and/or obtain a faculty). Other cases suggest that an interred corpse subsequently becomes part of the land in which it is buried, so that any unlawful interference is actionable in trespass, but only at the instance of the landowner (or grave owner): see Doodeward v Spence (1908) 6 CLR 406 at 412, per Griffith CJ; and O'Connor v City of Victoria (1913) 4 WWR 4. As to the type of interest in land which arises in these circumstances, see A Dowling ‘Exclusive Rights of Burial and the Law of Real Property’ (1998) 18 LS 438.

23. See D Mortimer’ Proprietary Rights in Body Parts' (1993) 19 Monash ULR 216 at 238; as well as AW v CW [2002] NSWSC 301.

24. Eg an executor will be entitled to possession of the remains, even as against the deceased's spouse or children: Rees v Hughes [1946] KB 517; and Murdoch v Rhind [1945] NZLR 425, discussed at n 27 below. Any distress or inconvenience caused to the family is irrelevant: Grandison v Nembhard [1989] 4 BMLR 140 (executor entitled to bury the deceased in Jamaica in accordance with his wishes, notwithstanding a request from the deceased's daughter for her father to be buried in the UK).

25. Smith v Tamworth City Council (1997) 41 NSWLR 680. However, they must provide details of the funeral arrangements to the deceased's relatives in response to reasonable requests for such information: Sopinka v Sopinka (2001) 55 OR (3d) 529.

26. [1986] 2 BMLR 123.

27. See further Murdoch v Rhind [1945] NZLR 425 in which the executor was granted an injunction to prevent the deceased's widow from cremating his corpse, the executor intending to bury the deceased in the family burial plot.

28. Other possible scenarios include joint executors under a will, or situations where more than one individual is entitled as a member of the same class of next of kin for the purposes of intestacy under s 46 of the Administration of Estates Act 1925, such as children, siblings or parents of an adult child.

29. (1992) 106 FLR 446.

30. A similar approach was adopted by the Supreme Court of Western Australia in Burrows v Cramely [2002] WASC 47.

31. [1999] 1 FLR 767.

32. [1999] 1 FLR 767 at 770.

33. It is interesting that Boggis J did not specify any reason for it being ‘wholly inappropriate’ to divide the child's ashes in this case. Instead, his decision appears to have been influenced by the perceived needs of the deceased's family and what he considered to be the most appropriate course of action given the factual circumstances of the case. The splitting of ashes following cremation is not unlawful and does occur in practice. Moreover, there is nothing unlawful about different parts of a body being buried in different places. Perhaps some of the best known examples exist in relation to Roman Catholic saints, such as Oliver Plunkett who was martyred at Tyburn on 1 July 1681 by hanging, disembowelling, quartering and beheading. His body was initially buried in two tin boxes. While the head is now on display at St Peter's Church in Drogheda, Ireland, most of the body is at Downside Abbey in England, with some relics in Ireland.

34. See generally W Wagner ‘Death, Dying and Burial: Approaches in Religious Law and Practice’ (1999) 51 The Jurist 135.

35. (1930) 65 OLR 586.

36. (1993) 104 DLR (4th) 384.

37. Applying Abeziz v Harris Estate [1992] OJ no 1271 where the Ontario Court refused a mother's request for an injunction preventing cremation of her son's remains by his executor on the basis that she wished her son to have a proper Jewish burial. Farley J, whilst acknowledging that Orthodox Judaism prohibits cremation, held that religious law had no bearing on the outcome of the case, which would be determined solely on the basis of legal obligations.

38. (3 March 1997, unreported), Supreme Court of Victoria.

39. See n 16 above. In Calma v Sesar (1992) 106 FLR 446 (see text to n 29 above), the family were of Aboriginal descent and the father's request to bury his son in Port Hedland was supported by the paternal grandfather, a member of the Bardi Aboriginal tribe, who asserted that the deceased should be buried in his homeland in Western Australia in the family burial plot. Rejecting cultural considerations, Martin J held that the practicalities of the situation favoured the deceased's mother.

40. [1999] 2 FLR 844.

41. While this description originated in the press, Hale J did not (and did not need to) determine whether it was accurate, although she was critical of the relevant adoption law at the time of the deceased's birth.

42. (1992) 106 FLR 446 at 452.

43. (3 March 1997, unreported), Supreme Court of Victoria.

44. (3 March 1997, unreported), Supreme Court of Victoria at 6.

45. (3 March 1997, unreported), Supreme Court of Victoria at 7.

46. Anatomy Act 1984, s 4 and Human Tissue Act 1961, s 1.

47. (1882) 20 Ch D 659 (see n 10 above and accompanying text).

48. For a critique of the relevant authorities see P Matthews ‘Whose Body? People as Property’ [1983] CLP 193 at 197–205 and 208–214; P D G Skegg ‘Human Corpses, Medical Specimens and the Law of Property’ (1975) 4 Anglo-Am LR 412 at 412–416; and A Grubb “‘I, Me, Mine”: Bodies, Parts and Property’ (1998) 3 Med LI 299 at 307–308.

49. (1614) 12 Co Rep 113.

50. As suggested in 2 B1 Corn 429 and 3 Co Inst 110.

51. (1788) 2 TR 733.

52. Despite being cited as authority for the ‘no property’ rule in R v Sharpe (1857) Dears and Bell 160; Williams v Williams (1882) 20 Ch D 659; and R v Price (1884) 12 QBD 247.

53. See Dobson v North Tyneside Area Health Authority [1996] 4 All ER 474; and R v Kelly [1998] 3 All ER 741.

54. See the discussion in Brazier, n 4 above, at 561–563.

55. There are a number of situations in which public policy dictates that the dead should not be able to tie the hands of the living - eg the rule against perpetuities and rule against accumulations. However, the general balance is in favour of testamentary freedom.

56. Sentiments echoed by Brazier, n 4 above, at 561–565.

57. One of the most obvious examples being patient autonomy and the need for informed consent to medical treatment: see generally Kennedy, I and Grubb, A Medical Law (London: Butterworths, 3rd edn, 2002) ch 5Google Scholar.

58. See Harris, n 4 above, at 532–534 and the various works cited therein.

59. See eg B Bennett ‘Posthumous Reproduction and the Meaning of Autonomy’ [1999] MULR 13.

60. See generally Kennedy and Grubb, n 57 above, ch 15 and the sources cited therein

61. See eg Morgan, D Issues in Medical Law and Ethics (London: Cavendish, 2001) ch 12Google Scholar; as well as Kennedy and Grubb, n 57 above, chs 16 and 17.

62. There have been several instances of courts referring to the wishes of the deceased: see eg Grandison v Nembhard [1989] 4 BMLR 140 (see n 24 above); and Saleh v Reichert (1993) 104 DLR (4th) 384 (see text at n 36 above). However, these will only be upheld where they are consistent with the established legal framework for resolving burial disputes and with the intentions of the person entitled to determine the form of burial.

63. Atherton, R ‘Who Owns Your Body’ (2003) 77 ALJ 178 at 188Google Scholar.

64. Kerridge, R Perry and Clark: The Law of Succession (London: Sweet & Maxwell, 10th edn, 1996) p 7 Google Scholar.

65. See Atherton, R ‘En Ventre Sa Frigidaire: Posthumous Children in the Succession Context’ (1999) 19 LS 139 at 149Google Scholar and the cases cited therein.

66. See Re Scheck's Estate 14 NYS 2d 946; as well as Stewart v Schwartz Brothers-Jeffer Memorial Chapel Inc and Scott 606 NYS 2d965 (1993).

67. See Re Scheck's Estate, 14 NYS 2d 946, as well as the recent high-profile dispute over the remains of Boston Red Sox baseball legend Ted Williams, whose daughter was seeking to have her father's remains cremated in accordance with a direction to this effect in his last will, against the wishes of her brother, who wanted his father's corpse to be cryogenically frozen on the basis of alleged subsequent oral directions to this effect: see ‘Frozen in Memory’ Observer, 14 July 2002.

68. Although the law already contemplates oral directions as regards the donation of body parts for posthumous research or transplant purposes, where such requests are made in the presence of two or more witnesses: Anatomy Act 1984, s 4 and Human Tissue Act 1961, s 1.

69. Responsibility for carrying out the deceased's burial instructions could be placed on the executor or personal representatives. However, the deceased would have to ensure that his or her wishes were known to such persons, given the short space of time between death and burial.

70. See eg In the Estate of Meksras Pa D & C 2d 371 (1974) in which the court refused to uphold the deceased's request to be buried wearing valuable jewellery on the basis that it would only encourage grave-robbing.

71. See the discussion in A Bove and M Langa ‘Ted Williams: Is He Headed for the Dugout or the Deep Freeze? Property Rights in a Dead Body Resurrected’ Massachusetts Lawyers Weekly, 19 August 2002. The position would arguably be different in the context of this particular example if burial was to take place on private land obscured from public view and no risk was posed to public health.

72. However, there may be scope for giving effect to the deceased's burial instructions under specific provisions of the European Convention on Human Rights: see nn 112–127 below and accompanying text.

73. (1882) 20 ChD 659.

74. [1998] 3 All ER 741.

75. See the cases cited at n 24 above.

76. Since cohabitants are not included in s 46 of the Administration of Estates Act 1925. The position is different in other Commonwealth jurisdictions, such as Australia, where specific statutory provisions allow cohabitants of sufficient standing to obtain a grant of administration in respect of their partner's estate, and thus to claim custody of his or her remains for burial: see Brown v Tulloch (1992) 7 BPR 15101; and Burnes v Richards (6 October 1993, unreported), Supreme Court of New South Wales.

77. As in Holtham v Arnold (1986) 2 BMLR 123 (see text to n 26 above). Other possibilities include same-sex partners, stepchildren, and the deceased's fiancé(e) or long-term boyfriend or girlfriend, who would not qualify as next of kin.

78. The High Court may pass over a named executor or person who would have been entitled to a grant of administration if ‘special circumstances’ make it ‘necessary or expedient’ to do so: Supreme Court Act 1981, s 116. In Grandison v Nembhard [1989] 4 BMLR 140 (discussed at n 24 above), Vinelott J left open the possibility that the exercise of an executor's discretion might be capable of being interfered with at the instance of a relative in some (unspecified) exceptional circumstances. While accepting that ‘special circumstances’ in s 116 are not confined to those relating to the estate itself or its administration, Hale J in Buchanan v Milton [1999] 2 FLR 844 (see text at n 40 above) was of the opinion that the facts of this particular case did not make it necessary or expedient to displace the rights of the deceased's mother as his personal representative.

79. See A S Cook and K A Oltjenbruns Dying and Grieving: Lifespan and Family Perspectives (New York: Holt, Rinehart and Winston, 1989) ch 2; and D Davies Death, Ritual and Belief (London: Continuum, 2nd edn, 2002) ch 3.

80. See generally B Romanoff and M Terenzio’ Rituals and the Grieving Process' (1998) 22 Death Studies 697.

81. See Cook and Oltjenbruns, n 79 above, p 112, which refers to the therapeutic value of the burial process in terms of symbolising transition and healing.

82. Romanoff and Terenzio, n 80 above, at 698.

83. As in the US case of Boyd v Gwyn 6 Pa D & C 275 (1925) where the court awarded custody of the deceased's remains to his daughter, who had maintained a close relationship with her father and intended to bury him in the family plot in Nashville where he had been born and raised, in preference to the deceased's sons, who had no contact with their father for 20 years and wished to have his remains buried in Philadelphia.

84. Eg a dispute between the deceased's spouse and siblings.

85. Eg a dispute between the deceased's parents and the deceased's fiancé(e) or cohabiting partner.

86. (1986) 2 BMLR 123 at 125.

87. See further the comments of Ashley J in Meier v Bell (3 March 1997, unreported), Supreme Court of Victoria at 5.

88. However, there may scope for cohabitants or persons in a close relationship with the deceased to challenge the proposed form of burial under Art 8 of the European Convention on Human Rights: see nn 128–130 below and accompanying text.

89. See eg Sherman v Sherman 330 NJ Super 638 (1999). Where the deceased's wishes are unknown, the right to possession of the remains vests in the deceased's surviving spouse or, failing that, the next of kin: see Pierce v Proprietors of Swan Cemetery 10 RI 227 (1872); and Stackhouse v Todisco 370 Mass 860 (1976); and the cases cited in Atherton, n 65 above, p 149.

90. Thus, in Stewart v Schwartz Brothers-Jeffer Memorial Chapel Inc and Scott 606 NYS 2d 965 (1993) the deceased's homosexual partner of five years succeeded in his request to have the deceased cremated in accordance with his wishes (the deceased having made several oral declarations to this effect), contrary to the mother's initial decision to have her son buried in accordance with the Jewish faith in which he had been raised.

91. [1999] 1 FLR 767 (discussed at text to n 31 above).

92. [2000] 3 WLR 1322 (discussed at text to n 135 below).

93. [2001] 2 WLR 1175 (discussed at text to n 137 below).

94. However, contrast this with the Australian case of Milanka Sullivan v Public Trustee (24 July 2002, unreported), Supreme Court of the Northern Territory, in which the deceased had made a valid will appointing the Public Trustee as executor and directing that he be buried with his dead wife and son. However, the deceased's relatives claimed that, under Aboriginal law, his elder brother should determine the funeral arrangements and the executor wanted to give effect to their wishes for burial in an Aboriginal cemetery. Gallop AJ emphasised that the deceased had no right to control the posthumous fate of his body and that it was ultimately a matter for the executor, who was entitled to follow the wishes of surviving relatives against the wishes of the deceased in this case.

95. Brazier, n 4 above, at 561 points out that, as far as succession law is concerned, the emphasis is firmly on the wishes of the deceased no matter how rational or eccentric.

96. The is little prospect of them overruling the executor's decision, save perhaps on the somewhat tentative basis of Art 8 of the European Convention on Human Rights: see text at nn 128–134 below.

97. Even if falling outside the legal classification of family, such as a cohabitants or the deceased's fiancé(e).

98. While the existing framework makes no allowance for overturning this decision, the deceased's relatives could perhaps make a case for burial to be in accordance with his or her wishes under the relevant provisions of the European Convention on Human Rights: see nn 113–127 below and accompanying text.

99. Thus dealing with Holtham v Arnold [1986] 2 BMLR 123 type situations (see text at n 26 above). While this assumes that courts would hear submissions from individuals with close ties to the deceased who fall outside the legal classification of family, this should not be too difficult a task. It would not be a case of judges having to evaluate personal relationships and award custody of the corpse according to the strength of such relationships; instead, they would merely be hearing evidence from those who were closest to the deceased in life in order to discern his or her wishes on burial and to ensure that this is carried out accordingly.

100. See generally Rees, D Death and Bereavement: The Psychological, Religious and Cultural Interfaces (London: Whurr, 1997) ch 1Google Scholar.

101. 3 Co Inst 203.

102. Brazier, n 4 above, at 563.

103. [1999] 2 FLR 844 at 855.

104. Most notably in the law relating to refusal of unwanted medical treatment: see eg Sr George's NHS Hospital Trust v S [1998] 3 All ER 673.

105. It is also worth noting that religious and cultural values play a vital role in disputes surrounding the treatment of ancient skeletal remains where the spiritual beliefs of indigenous groups have been instrumental in determining the fate of numerous collections: see eg Hubert, J ‘Dry Bones or Living Ancestors?’ (1992) 1 I J Cultural Property 105 Google Scholar.

106. See the various sources cited at nn 79 and 80 above.

107. [1998] SASC 6769 and [1999] SASC 125.

108. As next of kin according to common law degrees of kinship as opposed to degrees of kinship under Aboriginal customary law.

109. [1999] SASC 125 at 10.

110. [1999] SASC 125 at 10.

111. [1999] SASC 125 at 10.

112. See generally McGoldrick, D ‘The United Kingdom's Human Rights Act 1998 in Theory and Practice’ (2001) 50 ICLQ 901 CrossRefGoogle Scholar.

113. Kokkinakis v Greece (1993) 17 EHRR 397. See generally Evans, C Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2001 CrossRefGoogle Scholar).

114. See the cases cited at n 138 below, as well as the discussion in Kearns, P ‘Religion and the Human Rights Act 1998’ (2001) 151 NLJ 498 Google Scholar.

115. See generally van Dijk, P and van Hoof, G J H Theory and Practice of the European Convention on Human Rights (Boston: Kluwer Law International, 3rd edn, 1997) pp 549–551 Google Scholar.

116. (1981) 24 D & R 137.

117. Since the term ‘practice’ does not cover each act which is motivated by a religion or belief: Arrowsmith v United Kingdom (1978) 3 EHRR 118; and Pretty v United Kingdom (2002) 35 EHRR 1.

118. See generally van Dijk and van Hoof, n 115 above, pp 558–563.

119. Article 10 (and analogous provisions) may be of more use where the deceased prescribes a particular form of commemoration which, by its very nature, is a public statement. In ‘Jerusalem Community’ Funeral Society v Lionel Aryeh Kestenbaum (1991) 46(2) PD 464 the respondent sought to have his wife's tombstone engraved with her name, Gregorian date of birth and Gregorian date of death in Latin characters as stipulated by his wife. However, the funeral society refused this request, relying on a term in its standard contract that no letters other than those of the Hebrew alphabet should be engraved on its tombstones. A majority of the Supreme Court of Israel held that this term was void on the ground that it violated the respondent's right to freedom of expression, conscience and human dignity.

120. (1981) 24 D & R 137.

121. See Niemietz v Germany (1992) 16 EHRR 97.

122. Assuming, of course, that an application could be made by someone acting on behalf of the deceased to exercise such rights. In X v Federal Republic of Germany (1981) 24 D & R 137 the relevant application was made while the applicant was still alive.

123. [2002] 1 AC 800.

124. That aside, the European Court of Human Rights in the subsequent decision in Pretty v United Kingdom (2002) 35 EHRR 1 did not accept the argument that Art 8 has no relevance to the manner of leaving life.

125. See generally Arts 8 (2), 9(2) and 10(2).

126. (1981) 24 D&R 137.

127. Eg directions to ‘preserve my body and place me in my favourite armchair’ would presumably be regarded as an affront to human dignity, while a request to be ‘buried in the church graveyard beside my wife’ might be defeated by the plot being full or by the church in question refusing to bury non-members.

128. Although if the opposition is based on religious or cultural beliefs, the applicant could invoke Art 9.

129. See generally van Dijk and van Hoof, n 115 above, pp 504–508 and the cases cited therein.

130. Such as cohabitants who constitute a ‘family’ for the purposes of Art 8: see Johnston v Ireland (1987) 9 EHRR 203.

131. Application no 37794/97.

132. [2002] 3 WLR 603.

133. See however Harris, n 4 above, at 545 which suggests that the right to family life under Art 8 would include the process of bereavement and execution of funeral rites.

134. Although it may be argued that there is no risk to public health from a properly embalmed body, such as that of Edward MacKenzie (see n 6 above), the local authority in this case conceding that it posed no health hazard. Likewise, the fact that a corpse is on public display might not be regarded as immoral, as in the case of Jeremy Bentham's body on display at University College London, although it is important to note that Bentham had specifically directed that his remains be used to create an ‘auto-icon’ of himself.

135. [2000] 3 WLR 1322.

136. They had been acting out of respect for the deceased's widow, who did not oppose the petition.

137. [2001] 2 WLR 1175.

138. Citing Arrowsmith v United Kingdom (1978) 3 EHRR 118; and Kokkinakis v Greece (1993) 17 EHRR 397 at 418.

139. See, however, Re Blagdon Cemetery [2002] 3 WLR 603 in which the court suggested that this particular case could have been decided in the same manner without the need recourse to Convention rights.

140. Sentiments echoed by Perry J delivering the judgment of the court in Jones v Dodd [1998] SASC 125: see text to n 147 below.

141. See n 113 above and accompanying text.

142. See X v Federal Republic of Germany (1981) 24 D & R 137, discussed at text to n 116 above.

143. Art 9(2).

144. The decision in H v Norway (1992) 73 D & R 155 also suggests that courts should give appropriate consideration to the rights of other persons with a legitimate interest in the deceased's burial. Here, the applicant had failed to prevent his pregnant partner from undergoing a termination, and subsequently requested the hospital to hand over the remains of the aborted foetus to him for interment in accordance with the Jewish faith. His request having been denied, the applicant claimed a violation of Art 9. While observing that Art 9 guarantees the right to manifest one's religion or beliefs, the Commission held that this right is not unlimited when it violates the rights of others. Granting custody of the foetal remains to the applicant in the present case would have been degrading to his partner as the person primarily concerned with the pregnancy and its continuation or termination.

145. [1999] SASC 125 and discussed at nn 107–111 above.

146. Art 18.

147. [1999] SASC 125 at II. In the latter context, Perry J stressed the need to give due weight to the wishes of the deceased's children, again in accordance with international instruments emphasising the need to recognise and protect the best interests of the child, such as Art 3(1) of the Convention on the Rights of the Child. Moving from international laws to national constitutional provisions, in Waskewitch v Hastings (1999) 184 Sask R 79 the applicant, who had given her son up for adoption in 1972, challenged plans by the adoptive parents to cremate his body following the son's untimely death in 1999. The applicant wanted the body to be buried in accordance with First Nations practice, arguing that the proposed cremation would infringe her right to freedom of religion guaranteed by s 2 of the Canadian Charter on Rights and Freedoms. While Dawson J was not unwilling, in principle, to consider the plaintiff's arguments, he ordered the body to be released to the adoptive parents - the corpse was decomposing, and the application concerned issues of fundamental importance with far-reaching implications which were too urgent to determine on the basis of insufficient evidence.

148. See the cases cited at n 13 above.

149. See the various sources cited at nn 79 and 80 above.

150. [1999] 2 FLR 844 at 854.

151. See eg Waskewitch v Hastings (1999) 184 Sask R 79 (discussed at n 147 above)as well as the comments of Debelle J in Re Lochowiak [1997] SASC 6301.

152. See eg the comments of Hale J in Buchanan v Milton [1999] 2 FLR 844 at 854.

153. As evidenced eg by public reaction to the Alder Hey and Bristol organ retention scandals (see Skene, n 3 above, and the sources cited therein) and the controversy generated by the recent public autopsy conducted in London by Professor Von Hagens as part of his Body Worlds exhibition (‘Freak Show or the Cutting Edge of Education?’ The Times, 21 November (2002).

154. (1992) 106 FLR 446 at 452.

155. [1945] NZLR 425 at 426.

156. Sentiments echoed by Hale J in Buchanan v Milton [1999] 2 FLR 844 at 854.

157. (1985) Times, 23 April.

158. Seen 12 above.

159. Eg where the deceased and his or her partner rejected traditional religious practices (as in Saleh v Reichert (1993) 104 DLR (4th) 384), or where they adopted a lifestyle outside the culture within which the deceased was raised (as in Jones v Dodd [1999] SASC 125; and Meier v Bell (3 March 1997, unreported), Supreme Court of Victoria).