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