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“Give Us Our Corpse”-The Legal Ownership of Corpses.

Thursday, September 20th, 2012  

It all started with the much criticised University of Lagos (UNILAG) name change, and the fact that I had to keep away from school (on

What is in a name?

mum’s instruction). I considered it embarrassing for me to be tongue- tied if anyone asked me about the situation of things in my school, so I vowed to buy a newspaper once every two days ( because I knew I couldn’t win the battle as to whether to listen to the news on the TV or watch a soap opera). I did this religiously for the first two weeks, after which I discovered that the stories were all the same, the only difference each day being the character and/or location.

 After catching up on the news on UNILAG, I usually just dropped the paper in my bag, and waited for the perfect time to turn the rest of the pages looking for a captivating story. In the National Mirror of Wednesday, May 30, a caption on page 50 on the column for Community Mirror particularly caught my attention; it read: “Family accuses hospital of stealing corpse”. The story was about the claim of a family that when they requested for the body of their late sister/ wife, the morticians presented a corpse which did not have any semblance with that of the deceased. The matter was reported to the police who promised to investigate, but the family insisted that no way would they rest until they got the body of their late relative.

It didn’t really strike a nerve in me until I saw the front page of the Daily Sun of June 13 (after the Dana plane crash), only to see the caption “Two families fight over one body.”- It happened that two families had identified the body of a victim as that of their relative and the hospital administration decided not to release the body to either of the families. Then I started asking questions: can these people really maintain an action against the hospitals? If yes, what will be the basis for the action? Stealing, conversion, or detinue?

It is a well-established principle of law that there is no property in a corpse. The law does not regard a dead body as property protected by rights. This is a general rule. The only exception is where body parts acquire different attributes by virtue of the application of skills e.g. when the body is dissected such that the parts become distinct from the whole.

The first recorded judicial pronouncement on the ownership of corpses comes from 1614, when William Haynes of Leicester, England, was accused of having raided four graves for the purpose of stealing the sheets in which the corpses were wrapped, which were allegedly the deceased’s properties. Although he was whipped for petty larceny (i.e. the theft of personal property), the court ruled that he could not have stolen the sheets from the corpses, because the dead bodies were incapable of owning property. This case has often been cited for the assertion that just as dead bodies cannot own property, they also cannot be a subject of ownership.

 In England, this position of the law is often referred to as the ‘no property rule’. In the case of Jonathan Yearworth & ors v. North Bristol NHS Trust((2009) EWCA Civ 37), the Court of Appeal at page 31 gave the reason for this rule in the following words: “there were at least three reasons for the rule that a corpse was incapable of being owned. First, that there could be no ownership of a human body when alive, why should death trigger ownership of it? Second, as implied by Coke and Blackstone, the body was the temple of the Holy Ghost and it would be sacrilegious to do other than to bury it and let it remain buried…third, it was strongly in the interest of public health not to allow persons to make cross- claims to the ownership of a corpse.”

It should not be misunderstood however that the relatives of a deceased have no right whatsoever over the body. As a matter of fact, they have a right, but that right is not the right of ownership. According to the court in Williams v Williams ((1882) 20 Ch. D 569, at page 665), “…the law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it), until it is properly buried”. In other although there can be no ownership of corpse, certain people have the right to possess the body: anyone with the duty to bury the dead, and if lying in hospital premises, the hospital authorities will be in possession of the corpse.

The summary of this is that while the families cannot lay claim to ownership (which is actually a bundle of rights which encapsulates the right to alienation), they can lay claim to possession. In conclusion therefore, it is not about ownership, but about possession for purposes of burial, cremation, autopsy, donation of its organs, or the likes of them.

Ogunmola Feyi.

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4 responses to ““Give Us Our Corpse”-The Legal Ownership of Corpses.”

  1. Temitope says:

    This is highly educative. Well done Seyi!

  2. Tosin says:

    Great article. I loved it!!!!!!

  3. Tunde Ajayi says:

    Thanks for sharing, there’s no end to learning 🙂

  4. Aileru Yinka says:

    this is really cool. educative

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