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Two moral principles have been basic to the legal decisions concerning the rights and duties toward the newly dead. They are the duty to give decent burial and the denial to anyone of a right to ownership of the dead body for commercial profit. The next-of-kin-rather than the church or the state­ have come to bear the primary responsibility for providing decent burial.

The familial duty to give decent burial has come to be understood as a legal right to determine what is to be done to the body in the interval between death and burial.

Armed with this right, the family has had the power to deny permission for the use of an organ for transplantation or for the performance of an autopsy. Significantly, however, in certain cases of criminal investigation or the settlement of an insurance contract, an autopsy may be performed on the ground that the interest of society takes precedence over the contrary wishes of the family.

In addition to the interests of society and of the family are the wishes of the deceased. The courts have maintained both that the expressed wish of the deceased ought to be carried out and also that the sentiments of the living should be protected. In cases in which the interests of the living and the wishes of the deceased are in conflict, it has not been clear how the courts would exercise their "benevolent discretion."


This article was originally published in Philosophy & Public Affairs, Vol. 8, No. 1 (Autumn 1978), available at


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