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How Dead People Have More Rights Than You Do!

The new book 'Immortality and the Law of the Dead' explores America's own strange approach to the legal powers of the deceased.

The following is reprinted from Immortality and the Law of the Dead: The Rising Power of the American Dead, by Ray D. Madoff, with permission of Yale University Press, New Haven, CT.

In this age in which more information is known and easily accessible by the masses than ever before in history, there is one subject about which we are as ignorant as our forebears, and that is death. For most of us, our ignorance about death is a fact of life. We either accept death’s mystery or ignore its inevitability. However, our legal system cannot afford these philosophical or psychological luxuries. The law is constantly being asked to address real issues involving the dead: Is a person harmed when someone tells lies about her after death? To what extent does a person have an interest in what happens to his body after death? What about his property? For each of these questions--and more--the law has been required to provide answers.

American law has taken its own uniquely American approach to the law of the dead, colored in recent years by the distinct imprint of the baby boom generation. This generation is in the process of becoming the largest population of elderly in the history of the United States. Just as they have left their mark on other areas of American society at every stage of their lives, the baby boomers are in the process of transforming the legal landscape to claim more of the country’s riches for themselves—the future dead of America.

Law of the Dead—It’s Everywhere

At one time, dead bodies were primarily something to be buried. Legal questions regarding dead bodies were generally limited to determining who among the living was responsible for interment. Today, we are presented with many more options than past generations regarding the final use and disposition of our bodies. This range of possibilities raises many more legal questions. Can people make legally enforceable decisions about whether their bodies are buried or cremated, dissected for scientific study, harvested for organ transplants or plasticized for display in travelling exhibits?

More issues are raised by reproductive matter. It is now a relatively simple procedure to exhume sperm from a dead man. In the near future it may be possible to remove viable eggs from dead women. Do people have a legal right to control whether their eggs or sperm are exhumed after death for posthumous child production? If children are posthumously conceived, should they be treated as offspring of the deceased “parent”?

Cryonics raises some of the most vexing problems regarding the legal treatment of dead bodies as there is vast disagreement as to its viability. Some people believe that the technology will eventually be available and view cryonics as offering the best opportunity for people to finally be able to transcend death. Others see cryonics as a pipe-dream and the cryonics industry as charlatanism at its worst, designed to take advantage of people at their most vulnerable time. Will the law outlaw, tolerate or encourage cryonics? If allowed, who will decide whether a person’s body will be frozen for possible re-animation? If it were to work, would the newly de-frosted person be treated as the same person who died or as a new person?

Reputational interests raise their own set of questions. Some aspects of reputation lay firmly outside the law. For example, if a friend divulges our most embarrassing secrets, the law generally will not get involved. However, the law does step in to safeguard reputations in cases of defamation and invasions of privacy. Will these protections extend beyond death?

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