When the crypt doors creak and the tombstones quake, ghost come out for a swinging infringement of Disney’s copyright on the lyrics of this song.
That’s right guys, it’s time to swing open the mausoleum and take a trip down the weird world of the legal and illegal. It’s Freaky Friday here on Lawyers & Liquor, and this month we’re going to talk about the unique legal status of the human cadaver.
…I get the feeling a few of you will find this information important, and immediately afterwards will call off work to go “take care of something” in the basement.
What Is A Body Anyhow?
A person is a person just like a horse is a horse, and philosophers can spend forever arguing about what makes a person a person. The law doesn’t have much to do with that high-thinking nonsense, and we draw a firm fucking line on the question of how we define a person: A living human being. The moment you cease living, you are no longer a “person” in the eyes of the law and have no right to be treated as such. Instead, you are a thing. An inanimate object. No longer a flesh-and-blood paying client, but rather a collection of deteriorating flesh and something to be positioned and stuffed in a box so folks can say “Doesn’t he look just like he’s sleeping?”
Side note: When I am dead, unless I am nude and contorted into a variety of positions, I am not sleeping. I am dead. You’ll know by how little snoring and rancid flatulence there is.
Bodies Aren’t Property
The legal status of a body is sort of an interesting conundrum. Alright, so the law recognizes that bodies were once people and that, in our culture, we treat the human body with an amount of dignity and reverence. This is why we have things like “desecration of a corpse” and shit on the books, because the law recognizes the mortal remains of Uncle Joe are important to someone. Therefore, we give it a status that is greater than mere property, because there’s no law against fucking the tail pipe of your Subaru.
I’ll say this again: You cannot own a human fucking corpse.
This is why those “real human skulls” you see at most places are fake as hell and created from random animal skulls. Otherwise the salesman would be literally trafficking in corpses. Then he’d hire me. Because of course I’d get the goddamn grave robber as a client.
But at the same time, there are civil actions and rights inherent in a dead body, so we can’t treat it like it’s simply not property. Otherwise, how would a relative sue a funeral director for doing shady shit or bring an action for the intentional interference (a funny term for “corpse fucking”) of the body? People would lack standing, as treating a corpse as “non-property” means that nobody’s interest has been interfered with.
[Note for the Muggles: In the U.S., you have to have “standing” to sue or bring an action. It’s a really complicated thing at times, but it can be defined as you have to be the person whose property was injured, and the law has to be able to compensate you for it. This is a supreme oversimplification, but it works for our purposes today.]
Except They Sort Of Are Property.
So courts created a “kind of but not really” property interest in the mortal remains of your Uncle, granting it out to the next of kin within a certain degree of relation (Not a fifth cousin eight times removed or shit, but close relatives) and said “Okay, so you can’t sell their body to some weirdo in Texas who wants to make a leather face mask out of it, but we’re going to affirm you have an interest in the body and the standing to bring a lawsuit as a result.” Which, again, creates a weird legal limbo for the human body, because it is simultaneously not property for the purposes of the law while still allowing people to have property like interests in the body.
Much Like The Children at a Trailer Park, Bodies Are Wards of the State.
Things get even more fucky when the body goes into the ground. Historically, back in merry olde England, bodies were treated like the “exclusive property of the church” because the church controlled the burial process, the body was buried in a churchyard, and it was the church’s little creepy crawly worms that were wriggling in and out of your coffin as you slowly decomposed. No shit, there was a legal term for the custody of a dead body after burial: it was caro data vermibus, “flesh given to the worms.” Wasn’t jolly old England so fucking sunshiney and happy with their phrases?
We…still do this to some extent, except now we say that bodies are custodia legis, meaning that all human corpses, from the moment of death until the moment those bones turn into nothing more than more dirt, remain in the custody of the law. The law has the right, and duty, and control the final dispensation of a body, and to impose duties and liabilities on others. I choose to believe this is so they can cover up the imminent zombie and vampire outbreak.
This is why you can’t legally go dig up Grandma despite being her only living relative: Grandma’s putrid flesh was a ward of the goddamn state from the moment she had that heart attack in the midst of an orgy with three guys named Steve and a gimp.
…What? What did your Grandma do on Sundays?
Bodies Aren’t LIENABLE Property
Here’s an interesting one.
Not too long ago I saw a case where a funeral director was refusing to release the body of the deceased because they hadn’t yet been paid for the services and the cremation. The funeral director repeatedly stated they wouldn’t give up the ashes without payment, at least in part, of the bill.
Newsflash: You can’t do that shit, generally.
Back in merry olde England, prior to 1804, it was apparently not an uncommon practice for someone to seize the body of a deceased person prior to burial but after death to coerce the family into paying the past due debts. Essentially, they were treating the dead body as general property they could assert a lien over, holding it ransom for the payment of the bill. So, of course, we started making laws against that shit here, and the majority of states will have laws, or case law, that states a person cannot “arrest or attach” a dead body to guarantee the payment of a debt. In other words, Grandpa can’t be tagged and stuck on a shelf like he’s an item on Pawn Stars, waiting for the family to pony up the dough for payment.
What they can do, however, is require that a member of the family guarantee the payment of the funeral expenses and then sue the fuck out of the family when there’s no cash incoming. Funeral homes are not required to accept a body and provide a burial no matter what, they aren’t hospitals, and that means they get to dictate the terms to some extent when it comes to payment. Even if the family never signs the guaranty, there’s case law saying that the family itself (as the people with the quasi property interest) have standing to be sued for expenses related to the disposal of the mortal remains.
And funeral directors will do this, because they need to make a living. But they can’t just grab Gramps from the coffin and turn him into a living marionette for their television commercials simply because you won’t pony up the bill…
…but it shouldn’t surprise us people still do.
What About Shit Like “Bodies” Exhibitions?
So, yeah, we sort of mentioned desecration and mutilation of a corpse and the fact you can’t legally own a human body in the United States. So how does shit like the “Bodies” exhibition, which is a traveling showcase of actual fucking human bodies stripped of skin, dissected, and posed, get away with that shit in the name of art?
China is the source of those bodies. In China, it’s legal for the state to sell off the bodies of prisoners.
There are, of course, competitors out there who obtain their bodies through the Uniform Anatomical Gift Act, which allows the donation of a body and use thereof for “education” purposes, so long as it isn’t being used for profit.
But in the end, it’s actually all really controversial and should probably be discussed separately.
Oh, by the way, did you know one of those shows has two corpses fucking?
Death is Complicated.
Not as complicated as it is for the person who dies, though. Really all we’re left with here on Earth is a legal quagmire of property interests, not just in the pile of porn you leave behind like a Leaning Tower of Pisa in your bedroom but also in your body. Death makes you simultaneously property, not property, and a ward of the state who can’t be disturbed without court order.
And that’s why I want to be tossed in the river upon death and talked about like I moved to Zanzibar.
That’ll wrap it up for another Freaky Friday here on L&L. I’ve got dead person shit to do with, so get back in the graves before the State comes by to check that you’re still immobile.