POSTHUMOUS INTERESTS LEGAL AND ETHICAL PERSPECTIVESPDF电子书下载

Introduction 1

1 Posthumous harm, posthumous interests and symbolic existence 8

Harm 9

General 9

Interests 9

Posthumous harm: the real puzzles 15

The experience problem 15

Death as harm 17

The Epicurean argument 19

Surviving interests 20

The problem ofretroactivity 22

The moment of harm 23

Solving the problem of posthumous （non-）existence 25

Existence as a possibility 25

Existence in after-life 27

Harm and change without existence 28

Harm in no particular time 31

Persistent existence of the Human Subject 34

My proposal 34

The nature of the Human Subject 36

The relation between the Human Subject and the person 37

Strengths of the Human Subject model 38

Symbolic existence 40

The concept of social self 43

Legal support for the interest in symbolic existence 45

Conclusion 47

2 Posthumous rights 49

Specific theories of posthumous rights 53

Hillel Steiner 53

Annette Baier 57

Carl Wellman 59

Raymond Belliotti 61

General theories of rights 63

The choice theory 63

Critique of the choice theory 64

The exclusion of right-holders 67

The dead as right-holders 69

The interest theory 71

Versions of the interest theory 73

The idea of interest 76

Applying the interest theory to the dead 79

Should the dead be actual right-holders? 80

Content of posthumous rights 83

Duration of posthumous rights 84

Conclusion 86

3 Proprietary interest in the body of the deceased 88

Is there a proprietary interest in the body of the deceased? 89

The ‘no property’ rule 89

Haynes’ Case 90

Coke’s commentary 91

R v.Sharpe 92

Exelby v.Handyside 93

Common law exceptions to the ‘no property’ rule 94

Possession with regard to the duty to bury 94

The ‘work and skill’ exception 103

The ‘long-dead’ exception 107

Undermining the ‘no property’ outcomes 110

Undermining the ‘no will’ rule 111

Undermining the ‘no theft’ rule 113

Should there be a proprietary interest in the body of the deceased? 114

Possible theoretical models for acquiring property in the body of the deceased 114

Transfer of property 114

Property vests in the state 115

Abandonment 117

Res nullius 121

The conceptual meaning of a proprietary interest in the body of the deceased 122

Ownership 123

Possession 126

Use and management 127

Disposal 127

Transferability and the right to enjoy fruits 128

General rationales for a proprietary interest 131

Property as a natural right 131

Property as the advancement of autonomy and freedom 132

Property as constituting personality 132

Property as a system of distributive justice 134

Property as a form of utilitarianism 135

Procedural advantages of a proprietary claim with regard to the human corpse 136

Conclusion 141

4 Determining the disposal of one’s body after death 143

Constraints of autonomy interests 145

Legal barriers to enforcing bodily testaments 150

Alternatives to the will mechanism 154

Human tissue gift laws 154

Donor cards 155

Living wills 156

Trust 158

Agency 163

Contract 164

Alternatives to the property classification criterion 165

Substantial limitations of enforcing bodily testaments 171

Limitations directly established under legislation 172

Limitations directly established under case law 173

Clear and convincing demonstration by competent and credible testimony 173

Reason, decency and accepted customs of mankind 174

Limitations indirectly established under case law 174

Timing 175

Cost 176

Practicability 177

Harm to society 177

Public mores and vulnerabilities of other groups 179

A more general opposition to public policy 180

Procedural obstacles 181

Protection from harm to third parties 181

Quality of familial relationship 182

Conditioned bodily testaments 183

Quality of relationship to place of disposal 183

Conclusion 184

5 Medical confidentiality after death 186

Introduction 186

Post-mortem confidentiality in ethics and law 188

Ethics of post-mortem conf identiality 188

The legal position 189

International law 189

Canada 190

The USA 191

The UK 192

General justifications for confidentiality 194

Consequentialism 194

Rights-based justifications 196

Privacy 196

Autonomy 198

Property 200

Fidelity （equity） 203

The durability of the obligation to act in confidence 204

Survivability of the physician-patient relationship 204

An analogy from posthumous attorney—client privilege 206

The duty to keep promises: a contractual justification 207

Practical solutions to breach of confidentiality 212

General solutions to post-mortem confidentiality 212

More weight to confidentiality during life 212

The ‘no-difference’ approach 214

More weight to post-mortem confidentiality 214

Casuistical case analysis of post-mortem confidentiality 215

Disclosure to protect at-risk third parties 215

Disclosure in the best interests of another patient 216

Disclosure in death certificates 216

Autopsy disclosures 219

Disclosure prior to performing an autopsy 220

Disclosure from the autopsy procedure itself 220

Publication of autopsy reports 222

Disclosure to providers of disposal services and organ procurement organizations 226

Disclosure of research outcomes concerning dead subjects 226

Disclosure for teaching purposes 229

Disclosure for contesting a will or supporting an insurance claim 230

Disclosure of the medical history of public figures 231

Conclusion 234

Conclusions 236

The application of the interest in the recognition of one’s symbolic existence 238

The proprietary interest in the body of the deceased 238

The testamentary interest in determining the disposal of one’s body after death 241

The interest in post-mortem confidentiality 243

Possible objections to the idea of symbolic existence 244

Subject of interest 244

Duration of symbolic existence 245

Balancing the interest in the recognition of one’s symbolic existence with other interests 246

A right to the recognition of symbolic existence 247

Select bibliography 250

Index 265