The authors express concern regarding the "lack of rigorous ethical discussion and scientific argumentation about ancient mummy research" (eg x-ray, MRI and DNA examination of those delightful cadavers-in-cartonnage from Pharaonic Egypt). Kaufmann & Rühli comment that the lack of discussion -
is particularly striking due to various factors. First, any modern examination on historic corpses is done a priori without informed consent of the deceased.Quite so, unless you've booked a seance and taken off your alfoil beanie the dead don't speak. The authors go on to say -
Second, the research undertaken on such a body is often invasive either in terms of technological aspects or in terms of personality traits. The recent enormous methodological evolution — both in the social sciences and particularly in the natural sciences — allows researchers to gain more intimate information about historic personalities, often by means of 'invasive' (tissue-destroying) methods. Third, public and scientific reports about such findings do not follow the common criteria of medical privacy, by explicitly and specifically naming major diseases or causes of death of a famous ancient individual, such as a former king or pharaoh.From an Australian legal perspective Tutankhamun, Ramses or another personage from the Nile has no privacy rights in law and - being long gone, without discernable survivors - has no means of enforcing any claims. (If you accept some of the claims by quantum mystics regarding communication with the dead, dismissed elsewhere in this blog, that may not be an issue - acceptance if consistent is presumably accompanied by belief that Tut will strike dead the impious archaeologists, MRI operators and publishers who tamper with his corpse or tell tales out of school.)
The article is characterised as an -
attempt to advance the ethical debate in ancient mummy research. The aim of our study is to conduct a stakeholder analysis showing the pro and contra arguments of ancient mummy research for the various involved interest groups (eg, the mummy itself, descendents and researchers) and with respect to various cultural concepts. The study will be theoretically based on the literature about stakeholder theory and linked to the normative theory of ethics. ... We will not consider specific short-term legalistic definitions of when a body has to be dealt with forensically as a mummy and when the legal rights of individuality expire. By identifying stakes and stakeholders of ancient mummy research, we implicitly refer to the concept of the stakeholder theory without taking the theoretical heterogeneity into account.Well, that's a swag of problems out of the way.
Kaufmann & Rühli note that -
The international code of conduct of the International Council of Museums actually strongly encourages research on museum specimens. Thus, from a legal point of view, research on mummies, which is of benefit for the advancement of science, should be performed. Since there are no clear guidelines about how to specifically perform research on ancient mummified samples, there is no legal basis on how to best perform such studies, similar to the 'good clinical practice' — guidelines (as issued by the US Food and Drug Administration or the European Commission). In the future, mummy research guidelines shall address issues such as personal rights of the dead (medical data), who shall possess such data and how one may present it within and outside of the research community. Also, the diagnostic validity and invasiveness of the major methods used shall be addressed.I'm inclined to think that law is not going to award privacy rights to the pharoahs or enshrine a right of integrity that reflects a recognition that "investigation methods are sometimes invasive and destroy tissue or the investigations are conducted without the informed consent of the deceased". The authors invoke Kant in favour of a right of integrity for mummies, suggesting that -
disregarding a person's right of integrity incorporates harming this person or violating their right of autonomy. With regard to ancient mummies, the problem of violation is different compared to those of a living person. Is it possible to harm the dead? Is the bodily integrity of the mummy to some extent at stake through modern research efforts? ... offending the right of integrity is as much about the possibility of harming the dead, as about the autonomy and interests of the dead. Partridge holds the view that posthumous harm is impossible because no one can retain interests after death. Levenbook is more in favour of the possibility of posthumous harm. Also Levenbook stresses the metaphysical and meta-ethical difficulties in defending a fully developed concept of posthumous harm.The authors do acknowledge some of the challenges, noting that -
The definition of a mummy's descendants as adequate proxy decision makers is full of pitfalls, too. As Holm highlights, a culturally well informed scientist may have more ethical insights into the cultural beliefs of an ancient mummy than descendants who do not share a common cultural belief, but only ethnical proximity. In some cases, such as for the Neolithic Iceman, based on modern DNA analysis it could be proven that genetic proxies no longer exist today. Thus, 'fake' claims of descendancy could be repudiated by genetic analyses.If undergoing an MRI is an offence against dignity, what about being plastination - the grand guignol vended by entrepreneurs such as von Hagens? One perspective is provided by Marett Leiboff's 'A Beautiful Corpse' in 19(2) Continuum (2005) 221-237 which -
considers the legal status of artistically posed human corpses that are displayed in public exhibitions, in particular in Gunther von Hagens' 1990s Bodyworlds exhibition. The uses that may be made of human bodies post mortem is a legally as well as a culturally vexed question: when does a body become an object available for exhibition or trade, and what is the difference between art and the improper use of human remains? The law, as it has been created by the courts in common law countries during the last 500 years, has sought to preserve the dignity of the human body in death. In doing so, it embedded Christian morality and practices of the seventeenth and eighteenth centuries into the body of the law itself. So, as a basic proposition, the law establishes the principle that there can be no property in a human body after death, meaning that bodies cannot be owned by anyone, while other principles indicate that bodies are not to be tampered with, and are to be treated with dignity. The status of dead bodies, it seems, is far from clear.Leiboff goes on to comment that -
However, the law has also allowed some use to be made of bodies and body parts, provided they are used for some kind of social benefit, such as for health or educational purposes. For this reason, there are a number of permitted exceptions to the basic principles set out above, either developed through decisions of the courts or through legislation created by parliament. Some of these changes deal with the impact of new technologies, and sometimes they were instituted in order to rectify some unforeseen adverse consequence created by the general principles.
But does the law say that it is acceptable to anatomize a human corpse, and then pose it artistically in a public 'blockbuster' type of an art or science exhibition? There is no straightforward legal answer to this question. To find out if anatomized corpses can be displayed in artistic poses, such as in the state of Queensland in Australia, it is necessary to traverse the law that has developed in England, Australia, and Queensland over 500 years.
What may seem surprising is that no specific law says anything directly about the display of artistically posed anatomized corpses. For this reason, it is necessary to look at legal decisions in similar situations seemingly unrelated to the situation at hand, in order to work out what the law may say about this sort of display. This process involves looking at a broad range of laws in the countries mentioned, including criminal law, the law dealing with the ownership of objects, obscenity law, and the law dealing with the ability to access parts of bodies post mortem, such as transplantation and anatomy law. Legal decision making may also be driven, in part, by underlying moral or ethical questions that have been built into the law over time, or through recourse to liberal humanist principles such as autonomy or rights.
The kinds of legal questions that will be asked build on a range of existing legal decisions. For instance, given that there can be 'no property in a body', can their creator claim ownership of the posed corpses? For nearly 100 years the law has accepted that a modicum of skill and labour used to preserve human remains will allow them to be 'owned'. This principle comes from an Australian High Court case of 1908, and is the 'law' on this point, having been accepted by Australian and English courts. This may seem to be the beginning and the end of it — the artistically posed corpses have been preserved, so they may be owned. But the situation is not so straightforward — the decision in this case does not consider 'posed' corpses which have been subjected to some kind of enhancement or transformation. Nor does the case necessarily accept that it is permissible for a preserved body to be displayed. Law here unwittingly confronts the difficulty of trying to establish clear boundaries around the shifting cultural categories of 'art' and of 'humanity'.
Consequently, this article considers whether the law, as developed by the courts, may allow for the ownership and display of bodies that have been transformed. For this reason, it will also look at the developing law concerning the interference with a human corpse in the seemingly unrelated area of semen harvesting. The difference between a bare preservation and an active transformation of a body may be of marked significance for the development of legal rules and principles. Based on the underlying principles of the law, while preservation may be acceptable, transformative techniques may be considered unacceptable because human remains have become, in effect, nothing other than a raw material for a new, adaptive purpose, and not for a benefit or use to society. This article suggests that, if asked to answer this question, the courts in Australia may not accept the validity of this type of transformation of human remains.
