A. Property Interests in Dead Bodies

The legal status of dead bodies first developed in the common law of seventeenth-century England when grave robbing threatened the dignity of the deceased. The value in grave robbing prior to the introduction of anatomical studies in medicine, was not in the body itself. Rather, grave robbers would loot graves for the burial clothing or other items interred with the deceased.Footnote ¹⁶ Grave robbers would exhume a recently interred body to sell to medical colleges, anatomists, and surgeons for use in medical training. Prior to anatomical study as a part of medical training, dead bodies had little (if any) commercial value.Footnote ¹⁷ With no value in a dead body, English law historically saw no point in recognizing a property right in a human corpse.Footnote ¹⁸

But the definition of property is dynamic. What was not property in the past is capable of becoming property in the future. Before the development of travel by air, a landowner's right to use the airspace above his property extended to what would be ordinary use and enjoyment of his land.Footnote ¹⁹ In 1997, the English court reconsidered the no-property principle in Dobson v. North Tyneside Health Authority.Footnote ²⁰ A deceased's next of kin brought suit against (1) the North Tyneside Health Authority for failing to diagnose the brain tumor of the deceased and (2) the Newcastle Area Health Authority for failing to preserve the brain of the deceased. The coroner in the matter requested a postmortem examination. and during the autopsy, the deceased's brain was removed and fixed in paraffin, to later potentially be used for research purposes. Although English common law maintained a no-property rule in human bodies, the plaintiff sought relief for conversion.Footnote ²¹ When the court of appeal reviewed the case, the court recognized two exceptions to the historic no-property rule: First, there was a right to possession of a body for the purpose of burial or disposition. Second, “the lawful exercise of work or skill so dealt with a human body or part of a human body in a person's lawful possession such that it has acquired some attributes differentiating it from a mere corpse awaiting burial” possibly creates a property right in the body.Footnote ²² So although English common law still finds no proprietary rights in the human body, if the brain has been removed from the body and prepared on slides, those slides and the brain matter they contain are capable of becoming property.Footnote ²³

The development of anthropological institutes and cultural museums also reflects the changing conception of property rights of bodies. Museums all over the world that house collections of mummies and biological material are now facing requests (if not lawsuits) to return these collections to their country of origin (or to a representative of their cultural affiliation) who believe they have an intrinsic proprietary interest in the material.Footnote ²⁴ So how does the law treat ancient dead bodies with respect to proprietary rights? Is there a fundamental difference in the proprietary right of ancient dead bodies versus nonancient dead bodies? Jurisdictions differ when answering these questions.

English law's recognition of property rights created through the application of the work or skill exception (established in Dobson and reaffirmed in Kelly) does not directly state how ancient dead bodies can become property. But, it is evident from those cases that the courts were not hesitant to create a property interest in a body. Their creation of the work or skill exception meant that the dissection or preservation of dead bodies for exhibition or teaching purposes was a sufficient investment of the scientists' time, energy, and knowledge deserving of a legal right in the body itself.Footnote ²⁵ Then, in 2004 the Human Tissue Act (HTA 2004) codified the work or skill exception of the common law and gave special attention to ancient dead bodies. Under the HTA 2004, consent is the fundamental principle governing the storage and use of any material that contains human cells.Footnote ²⁶ Appropriate consent must be obtained to both store and use this material, with several exceptions, the foremost being that consent is not required to store and use material where the body or bodily material comes from a person who died 100 years or more before the HTA 2004 became effective.Footnote ²⁷ The specific language in the HTA 2004 exception indicates the English legislature had a conscious desire to distinguish between a mere (nonancient) dead body and what could be considered an ancient dead body, for the purpose of establishing legal interests in the body.

American jurisprudence, in contrast, is more willing to find an interest in a dead body, though the reality of this right is that it only exists as a quasi-property right to facilitate burial. It will not support a claim of conversion. In this sense, it is similar to the English no-property principle. In Ritter v. Couch, descendants of those buried in a town burial place brought suit to prohibit the removal of their ancestors from their graves. The Ritter court tried to distinguish American jurisprudence from its English counterpart by articulating that although old English law does not recognize the body as property, American courts do recognize a quasi-property right over which the relatives of the deceased have rights.Footnote ²⁸ Yet, we find from other common law cases, the courts are only willing to extend that right for the limited purpose of seeing that the body is decently interred or disposed of.Footnote ²⁹ In Culpepper v. Pearl Street Building, Inc., parents brought an action for conversion when their son's body was mistakenly cremated.Footnote ³⁰ On review, the Supreme Court of Colorado explicitly held that a property right did not exist in a dead body that would support an action for conversion. Because the quasi-property right arose to facilitate recovery for the desecration of a dead body, the plaintiff avoided needing to prove emotional distress. In reality, the primary concern of the right was not injury to the dead body itself, but to the emotional pain suffered by surviving family members. Thus, the courts created a nonproprietary right in dead bodies to ease the burden of family members who would otherwise have to appear in court to prove emotional distress.Footnote ³¹ The American possessory interest for burial is clearly a limited legal interest, distorted by an American court system applying the term quasi-property. Even under health code laws, next of kin are prevented from exhuming of bodies without legal approval from the state or another state-regulated health authority.Footnote ³² As such, it is evident that “property” rights in the body exist only as illusory rights.

The differences between English and American law is really only one of language. English law, in essence, finds no property rights in a body unless there has been an application of work or skill. American law, on the other hand, finds a quasi-property right in the body but only for the purposes of burial. This quasi-property right is a legal fiction and toys with language to give an impression of ownership where none actually exists. The resistance in American law to conform to English law and mimic the language of the no-property principle (even acknowledging of the right to possession for burial) is puzzling. Nonetheless, American law may have distinguished itself from English law in characterization but not entirely in principle. The question then remains, do exceptions exist in American jurisprudence, like those in the English common law, that create a nonfictional proprietary right in dead bodies or materials removed from the dead body similar to the work or skill exception? There appears to be a gap in both case law and scholarship on this point. The primary case that addresses the question of proprietary rights of human tissue samples is Moore v. Regents of the University of California, though Moore was a living supplier of tissue rather than a dead body. John Moore underwent treatment for hairy-cell leukemia at the University of California's Medical Center. On October 20, 1976, Moore's physician removed Moore's spleen. Thereafter, Moore's physician conducted extensive research on Moore's cells, from which they were able to establish a cell line and applied for a patent of the cell line. Moore's physician then negotiated agreements for the commercial development of the cell line and products to be derived from it. Moore brought suit for conversion, claiming a property right in his excised cells, but the court refused to find a proprietary interest in his cells due to a lack of precedent establishing a proprietary right in human cells and policy concerns that hold scientific research as a socially useful activity.Footnote ³³

Because Moore explicitly found there was no property right in excised tissue from living suppliers, it is easy to assume that there also is no property right in excised tissue from dead bodies. However, this would be a mistake. Although American case law does not distinguish between tissue samples of living suppliers and tissue samples of dead bodies in the application of proprietary interest, the law does discriminate between dead bodies with cultural value and dead bodies without cultural value. Thus, tissues excised from culturally relevant bodies may be capable of becoming property, whereas tissues excised from nonculturally relevant dead bodies cannot.

In State v. Redd, the Utah Supreme Court discussed Utah Code Ann. § 76–704(1)(a)(1995), which provided:

The court found that the legislature intended the statute to “protect partial remains of many people buried long ago in crude graves such as pioneers, war dead, or victims of horrendous accidents or crimes” whether those crimes or accidents occurred in the near or far past.Footnote ³⁴ In other words, there is no distinction based on the age of remains. Under this law, remains from the far past and remains from the near past have equal protection from desecration.

In 2004 the U.S. Supreme Court decided Bonnichsen v. U.S., also known as the Kennewick Man case, which relied, in part, on the Native American Graves Protection and Reparation Act (NAGPRA) and the Archaeological Resources Protection Act (ARPA).Footnote ³⁵ ARPA was created in 1979 after a century of congressional concern for the protection of archaeological resources.Footnote ³⁶ It attempted to make “abundantly clear” statutory language prohibiting the trafficking of valuable archaeological resources and to preserve these resources, so that through the cooperation of government authorities, the archaeological community, and private individuals valuable information could be exchanged.Footnote ³⁷ However, the ARPA granted no property rights over these resources. For example, in Matter of Shivers, Shivers sought the return of 50 metal tokens which he found in the Angelina National Forest. They had been seized by the government under warrant suggesting he had violated federal law by removing archaeological resources from a national forest.Footnote ³⁸ In 1990, the U.S. government enacted the NAGPRA, which explicitly classified Native American human remains as cultural objects and vested control over those remains in the descendants of the Native Americans.Footnote ³⁹ The Bonnichsen Court held that in order to fall under the protection of NAGPRA, human remains must bear some relationship to a presently existing tribe, people, or culture to be “Native American” and in the present case, 9000-year-old remains found off the waters of Kennewick, Washington, could not be classified as such. The cultural group to which he belonged either died out or was “unknowable.”Footnote ⁴⁰ This case exemplifies that though the U.S. Code does not differentiate between ancient dead bodies and nonancient dead bodies, the courts are willing to recognize a proprietary interest in dead bodies that are culturally important.Footnote ⁴¹ However, often the very fact that the remains are ancient renders them culturally important.

English and U.S. courts use different terms to discuss interests of dead bodies and biological samples taken from those bodies, and rights to possession in both jurisdictions vary in degree from a mere duty to bury through complete dominion and control. Nevertheless, each regulation, statute, act, or case attempts to allocate proprietary and nonproprietary rights that ensure the dignity of the deceased and are allocated to those who generally best represent that interest. Yet, who has the best representative interest when the dispute is between religious tenets and scientific inquiry? The United Kingdom has developed a proprietary right that protects the work (or application of skill) created by scientists, researchers, or preservationists over the religious beliefs of the nation or culture associated with particular remains, regardless of whether those remains are ancient or not. For example, when scientists apply their “skills” to tissue, such as creating slides of tissue samples, the U.K. courts have routinely found that those scientists own those slides and likewise own the tissue on those slides. Yet, the individual from whom the tissue originated has no right of ownership over that excised tissue even though it is their biological matter. The United States, likewise, protects scientific inquiry into nonancient remains by (1) refusing to give property rights to living donors of excised tissue, (2) allowing the commercialization of information extracted from that tissue, and (3) repeatedly affirming that only a nonproprietary right of custody for burial purposes only exist for the next of kin of a recently deceased body. However, when the remains are ancient (as opposed to a recently deceased dead body), the United States' model, NAGPRA, promotes religious sanctity above scientific value, but only if the remains are Native American. If a Native American descendent can be located, the remains become the property of that descendent, but when a descendent cannot be located, tribal or cultural affiliation is treated as a descendent and becomes the proxy owner of the remains.

I think the reason why science is given a paramount right probably has to do with social norms. As a whole, society is seeking answers about their origins and their future, which they feel can be answered by scientific inquiry. Yet, NAGPRA is an exception to that desire to drive forward scientific inquiry. Why? Perhaps it represents a legacy of guilt based on the actions of our colonist ancestors. In other words, the positions in NAGPRA suggest that no profound leap in our understanding of our biological origin (as humans) gained through the study of these remains can justify the disrespect of cultural values of Native American tribes, who have endured near annihilation through the writing of this country's history. Because any ancient remains discovered in the borders of the United States are likely to be the ancestor of a Native American tribe, NAGPRA serves to preserve the values of a minority class who occupy a unique place in our country's past.

B. Assignment of Property Rights Over the Body

The establishment of cultural affiliation is a complex issue. In the Kennewick Man case, the remains were over 9000 years old and the right to proxy decision making was contested. Native American tribes claimed ownership of the remains under NAGPRA, while scientists argued NAGPRA did not apply. The court examined both historical records and genetic analysis to establish the final claim of right to Kennewick Man's remains and found that the remains were so old, and the information about his era was so limited, that they could not reasonably conclude Kennewick Man “shared any special and significant genetic or cultural features with presently existing indigenous tribes, people, or cultures.”Footnote ⁴² Thus, legally Kennewick Man's remains were not Native American and therefore did not fall within the meaning of NAGPRA. Because NAGPRA is the only act in American jurisprudence that bestows a clear proprietary right in dead bodies, Kennewick Man's remains by default fell within ARPA and were protected as an item of national heritage though they do not belong to any particular person.Footnote ⁴³ In essence, the U.S. government became the proxy decision maker of Kennewick Man's remains under 16 U.S.C.A. §470dd, which allowed the U.S. government to control the future of the remains.Footnote ⁴⁴ Establishing a property right based on nationality became the default for a failure to unearth a better cultural identity or lineal descendant who could become a proxy decision maker for the remains.

Yet, even national identity is not a bright-line category. The issue becomes more complex when the remains are found close to national borders. In the Kennewick Man case, the court observed a limitation in NAGPRA, finding that the term “Native American” could not equate to any remains that predate European settlers but only to remains that relate to a “tribe, people or culture that is indigenous to the United States” (emphasis retained).Footnote ⁴⁵ Further, the court found that the “United States” is a political entity that dates back to 1789, and the use of the present tense (“that is indigenous”) referred to tribes, peoples, and cultures that exist in modern time but not those that may have existed thousands of years ago but do not exist now.Footnote ⁴⁶ In contrast to the statutory definition of “Native American,” the statutory definition of “Native Hawaiian” under NAGPRA means “any individual who is a descendant of the aboriginal people who, prior to 1778, occupied an exercised sovereignty in the area that now constitutes the State of Hawaii” (emphasis added).Footnote ⁴⁷ Thus, Congress has consciously chosen to define Native American as it relates to the borders of a political entity rather than a geographic location as they do when defining Native Hawaiian.

This is a common position taken by nations after World War II, and it is one of cultural nationalism; objects belong within the physical boundaries of the nations within which they are found or with which they are historically associated (i.e., Egyptian mummies belong in Egypt, Greek marble statues belong in Greece, etc.).Footnote ⁴⁸ This has been the guiding principle behind the development of international legislation affecting cultural property, including UNESCO and UNIDROIT.Footnote ⁴⁹ Yet, nationalism is limited by political stability. When borders change, nations change. Nationality becomes a fluid term that appeals to the emotions, while the epithet of nationality overshadows other forms of heritage (such as religious heritage). The Egyptian mummy stirs images of the pyramids and pharaohs who began to expand the borders of the nation we now know as Egypt, a country that we believe to have unchanging geographic borders and that will, in 50 years, remain just as we left it on the map in 2009. Yet, Egyptian mummy means so much more. It represents the religious past of pharaonic Egypt, where preservation of the dead ensured a chance in the afterlife. Does present-day Egypt—a geographic region inhabited first by Rmt Kmt (the people of Kemet); invaded by the Greeks, Romans, and then a succession of Islamic rulers; also experienced a French occupation and a British occupation; and is now 90% Muslim—have the best right to a pharaonic mummy?Footnote ⁵⁰ In other words, does national identity represent the best means for establishing cultural heritage? This is not to say nationality and cultural identity should be mutually exclusive. Each serves an important function in the development of the other. It is surely pragmatic to use nationality as a default when a better cultural identity is impossible to ascertain. And, using nationality has its benefits. When artifacts are culturally unidentifiable but nonetheless have historical value, using nationality generates historical pride and unity among those who live within the borders of the nation. Although it is doubtful that many Egyptians want to be identified exclusively as “the county with all the pyramids and mummies,” there is a sense of honor in the recognition of the marvels of ancient Egyptian ingenuity.

The case of Otzi (also known as the Iceman) reveals the danger of using nationality as a default tool for assigning property rights. Otzi's remains were found 100 meters from the border between Austria and Italy in 1991, and the controversy over the ownership of his remains became an international dispute as discussed by Brenda Fowler in her book, Iceman. Otzi (named after the region in which he was found) was approximately 5200 years old when he was discovered. This means he had lived during the late Neolithic or early Copper Age, before the nations of today were established. Historically, Tyrol (the area where Otzi was found) had been part of the Austro-Hungarian Empire.Footnote ⁵¹ But after the empire's defeat in World War I, Austria ceded the portion of Tyrol south of the main Alpine ridge to Italy, and the 1919 Treaty of Saint-Germain established the new border between Austria and Italy along the watershed of the Austrian river Inn and the Italian river Adige.Footnote ⁵² Mussolini sponsored the settlement of thousands of ethnic Italians in the region in 1935, but in 1939, on the eve of World War II, Hitler (who respected Mussolini's desire to hold onto the region) allowed the population to accept German citizenship and emigrate to Germany or keep Italian citizenship. At least 70% of the population voted to leave. In 1969 Austria and Italy agreed on a set of terms for a largely autonomous province called Sudtirol (South Tyrol) in German and Alto Adige (High Adige) in Italian. By 1991, the 440,000 people living in the province were 65% German, 26% Italian, and 4% Ladin. When the discovery of Iceman occurred, both Austria and Italy sought ownership, and the governor of Austrian Tyrol stressed that either way one looked at it, the discovery had been made in Tyrol. In other words, although Austria and Italy argued for their own proprietary rights, Otzi was most likely the cultural heritage of neither, but rather a nation that did not exist at the time he was discovered.Footnote ⁵³

The issue was resolved when both Austrian and Italian officials agreed to survey the land where Otzi was discovered make a final determination whether the land belonged to Austria or Italy. Though the 1919 Treaty of Saint-Germain had defined the border between Austria and Italy, it had done so only in language. Between 1921 and 1923, an international team mapped out the watershed between the Inn and the Adige rivers and set the border stones. However, because the mountains were covered in part by glaciers, the commission directed that where the land was concealed by ice, a straight line would be drawn between the two closest identifiable border points. In 1990, the surveyors determined the site where Otzi was discovered indeed lay on the Italian side of the border by 101 yards. However, much to everyone's surprise, the glacier melt in the preceding 70 years had shown more of the true watershed, which swung out more than 100 meters to the west of the actual border and around the site of the find. Otzi had actually lain inside the Austrian river Inn's watershed. Had the original surveyors seen the present view, the border would have been marked accordingly, and Otzi would now be the property of Austria.Footnote ⁵⁴

The battle for Otzi demonstrates the potential for controversy when using nationality to establish property rights, but is there a better way when a lineal descendant or cultural representative cannot be found? Probably not. If rights were not based on nationality but through a system that only found rights in individuals, only the next of kin (or in the case of ancient remains, a lineal descendant) would have a right. Because the courts have established that a lineal descendant or cultural representative already has the best right, nationality only becomes proxy when either of the two cannot be located. If a descendent or tribe (or cultural) is unknowable from the remains, and the nation in which the discovery was made is eliminated from eligibility, then who remains to make decisions with regard to the future of the remains? I offer no better solution to the problem, but challenge academic and legal community to devise a methodology that accounts for the fluidity of international or even interstate borders in a more appropriate and just manner than measuring how far valuable ancient remains lie from a series of boulders or GPS markers.

A. Property Interests in DNA

Establishment of proprietary rights of dead bodies, ancient dead bodies, and biological tissue samples from both demonstrates the fluidity of state, federal, and even international law. Cultural importance transforms a dead body that is not capable of becoming property into a cultural artifact that is capable of becoming property in any number of ways. Yet a new wrinkle in the fight for property rights over dead bodies has emerged, DNA. Deoxyribonucleic acid (DNA) is found in the nuclei of cells, where it stores the blueprint for the human body. However, a small amount of DNA can also be found in the mitochondria, where it is called mitochondrial DNA, or mtDNA.Footnote ⁵⁵ Each strand of DNA or mtDNA contains a sequence that differs among individuals. By analyzing these sequences, it is possible to trace paternity, determine predisposition to disease, or even establish physical traits of an individual. Thus, DNA can be scrutinized in two forms: physical and informational. The genetic information (made visual by a computer printout of the base pair sequences) is distinct and separate from the genetic samples themselves (i.e., blood, cheek swabs, etc.)Footnote ⁵⁶ Because it is probably legitimate to analogize genes in their physical form to other physical parts of the body, property rights might follow the same pathways.Footnote ⁵⁷ But can someone have a property right to genetic information? Maybe.

Currently American courts seem to prefer using terms like privacy and confidentiality as opposed to property when considering the legal rights in connection with DNA.Footnote ⁵⁸ However, with the increasing commercial value of genetic information, two models have emerged as proposals for finding legal rights: the common heritage model and private property model. Generally speaking, DNA sequences have been extracted from tissue supplied by living and willing donors, but does the treatment of property rights change when the sequences are extracted from tissue of ancient remains, specifically cultural artifacts? Should the proxy decision makers of ancient remains, like those of Kennewick Man or of an Egyptian mummy, “own” not only the remains and any samples taken from them but also the genetic sequence extracted from them? Or, in contrast to the American and British law on bodies, should cultural relevancy have no bearing on DNA ownership?

B. Assignment of Property Rights: A Model

The International Ancient Egyptian Mummy Tissue Bank of the Manchester Museum bridges the channels between the special treatment of cultural artifacts and the rights over genetic information. Depositors to the bank must verify that they possess legal title in the remains and thus are the legal proxy decision makers regarding the possession and control of the body.Footnote ⁸⁹ The museum agrees that the samples remain the property of the depositor, and in turn, the depositor grants the museum license to use the samples in the bank.Footnote ⁹⁰ However, the agreement notes:

Through this agreement, the property interest created by being a proxy decision maker over a piece of cultural heritage may be transferred to the genetic information extracted from the item. It appears that proxy decision makers have, at minimum, a future property interest in any commercially useful (genetic) development based on their interest in the ancient remains. Thus, if researchers using tissue from the bank purify and isolate a gene or sequence of genes, they do not have a sole right to commercialization from that research. The proxy decision makers (or individuals) have, in essence, a property right in genetic information because they have a property right in cultural property.

This model allows for research that benefits modern populations (e.g., research regarding Bilharzia), it provides a benefit or compensation to the DNA supplier (or proxy) in addition to the researcher, and it preserves the dignity of dead bodies. Thus, this model addresses the policy concerns for proprietary rights of ancient DNA in a workable and fair form. Rights over ancient DNA are not be limited to a single person, but rather are weighed by a scale accounting for a variety of legal and ethical rights. Returning to the original problems posed by Paradise and Andrews, the model of the International Ancient Egyptian Mummy Tissue Bank averts the abuses facing professional organizations in this field. The model promotes research, allows scientists access to samples, promotes scientific integrity and dissemination of results, accounts for the rights of all participants, and attempts to avoid conflicts of interest. The one obstacle the bank's model does not address is how to best establish the property rights over the remains.

Any future legislation mirroring this model should account for a property right over the body before addressing any rights over DNA. Accordingly, if a claimant is found to have no right to the body, then they would be barred from establishing a claim to the genetic information within that body. Only when a property right to the body is recognized could a claimant pursue a right over the genetic information. However, the rights are not concurrent but rather sequential; the right over genetic information must be given separate consideration after a finding of a right over the body. In the case of DNA supplied by a living donor, the donor's right to possess or control his own body is sufficient to establish a right over his body, and therefore the donor could pursue a claim over his own genetic information. In the case of DNA that was taken from an already deceased person (or a taken from person who was living but now is deceased), there must be a right to possess, control, or own the dead body under current law before a claim of right over the genetic information from that body could be found.

This model combines the idealism of both the common heritage doctrine and the private property model by ensuring equal access for all but also recognizing that an investment in the genetic analysis of remains should not be without compensation. More importantly, though, it preserves the autonomy of the individual who retains a voice in the use of the remains.