The Sacred and the Profane: The Role of Property Concepts in Disputes about Post-Mortem Examination

Abstract

The treatment of the body after death raises questions about who has control and the nature of that control. Disputes about post-mortem examinations are dealt with under two main regimes - the Coronial regime and the Human Tissue Act regime. Disputes arise where people have religious, psychological or other objections to post-mortem examination or to what happens after it. Under the Human Tissue Act regime disputes are dealt with using a consent model, based on the autonomy of the deceased. Under the coronial regime, the state's interest in law and order is the ruling objective. For centuries the common law has objected to dealing with these issues by the use of property concepts, but it is argued that this objection lies in an unnecessary view of property as commoditised and that it is preferable to use a model of property which emphasises the conception of property as custodianship. Such a view of property offers a better model for dealing with the dead body, whether under the Coronial or Human Tissue Act regime.

Keywords: post-mortem examinations, Human Tissue Act, property, Coronial regime