Ötzi, Irish giant and others in the light of law: the legal status and standard of dignified dealing with the deceased human body Ötzi, Irish giant and others in the light of law: the legal status and standard of dignified dealing with the deceased human body Ötzi, Irish giant and others in the light of law: the legal status and standard of dignified dealing with the deceased human body Ötzi, Irish giant and others in the light of law: the legal status and standard of dignified dealing with the deceased human body
Abstract
The problem of the legal status of the human body and the permissible dealing with the body is connected to some of the basic questions of human existence, morality, and the law. However, it is not entirely clear under which circumstances the human body can be considered a thing and what dealing with it is in the breach of law.
This is even truer when the postmortal protection through the rights of the persons close to the deceased cannot be applied, especially in cases of the discovery of unidentified bodies or bodies of persons deceased a very long time ago. The article is based on current Czech law and its interpretation in the sense of Rouček's and Sedláček's rule according to which the human body is a thing if the decency does not oblige us to see the body of a specific deceased person in it.
I defend the hypothesis that this rule - in the general private law perspective - should be understood as abstract specificity, or the belonging to the humankind. Its application will be limited by the time from the death of the person since the potential of the dealing with the body to contradict the public order or good manners decreases with time.
An alternative reason to categorize the dead body as a thing in the legal sense can consist in the application of the work and skill exception. Furthermore, there are defined the general rules for determination of the standard of respectful dealing with the deceased body in particular cases.
This standard should be understood in a subjectivised way so the known or presumed wishes of the deceased can be taken into account. At the same time, dealing with the body cannot be in gross conflict with the social beliefs regarding the dignity of the human body.
The protection of the deceased body can be proportionally limited in the public interest.