The annual service of thanksgiving to commemorate people who donate their bodies for medical teaching and research took place this year at Southwark Cathedral on 16 May, and the Erasmus blog Anatomy, funerals and the church observed that the service was attended by:
“[n]ot just robed clerics from the Anglican and other churches and representatives of other faiths: there were also medical students of many ethnic and religious backgrounds and some of their teachers, plus a larger group of Londoners who were moved by the proceedings even if they did not very often frequent cathedrals.”
Although there are some exceptions, the majority of religious groups have few objections to the donation of bodies for medical research, and many view this as a personal decision to be made by those wishing to do so. In terms of secular legislation, this is a relatively settled, uncontroversial area, which is regulated through a combination of statutory legislation and guidance. However, in view of the recent interest in the disposal of foetal remains and stillbirths which we covered here and here, it is pertinent to make some observations on how the law works in these two areas which have as a common feature, the absence of persona iuris, a “legal personality”.
The Human Tissue Act 2004 was introduced to provide a consistent legislative framework for issues relating to whole body donation and the taking, storage and use of human organs and tissue. With regard to anatomical examination, whilst the Act and relevant HTA Code of Practice are primarily concerned with the conduct of this and related activities within the medical schools, such procedures may not be undertaken unless the “appropriate consent” has been granted. This is detailed in Part 1 of the Act, section 3(3) to (5), and for anatomical examination (and also public display) the critical component is for the consent to be in writing and made whilst the person is still alive, either:
– signed by the person concerned in the presence of at least one witness who attests the signature;
– at the direction of the person concerned, in his presence and in the presence of at least one witness who attests the signature, or
– contained in a will of the person concerned made in accordance with the requirements of: section 9 of the Wills Act 1837 (c. 26); or Article 5 of the Wills and Administration Proceedings (Northern Ireland) Order 1994 (S.I. 1994/1899 (N.I. 13)).
Non-testamentary consent can take the form of the potential donor having completed an appropriate consent form, either under the Anatomy Acts 1832 or 1984, or the Human Tissue Act 2004. However, the power of attorney does not afford the attorney the right to decide on the donation of a body, even if this is believed to be the wish of the deceased. Although section 2 of the Act provides for the written consent of a child, the London Anatomy Office states “donors have to be deemed to be mature enough to make an informed decision about such a donation, hence there is a minimum age limit of 17.”
Donation and its acceptance
Whilst it is unlawful for anatomical examination to take place in the absence of the “appropriate consent”, the existence of such a consent is no guarantee that the body will be so used: this is dependent on both an offer of the donation by the person having the common law “custody and possession” of the body; and its acceptance by the medical school, which takes into account both physical attributes of the body and practical issues such as non-acceptance during holiday periods. Although the Human Tissue Authority, (HTA), regulates the use of bodies donated for anatomical examination, it does not play a part in these practicalities associated with their procurement: HTA Code of Practice 1 deals with the general aspects of consent for all activities within its remit, and HTA Code of Practice 4 is concerned with anatomical examination.
Donation of bodies for anatomical examination involves a mix of statutory and common law, as well as statutory Codes of Practice issued with Parliamentary approval. The deemed age of discernment is notable in that quasi-legislative provisions, such as those issued by the London Anatomy Office, supra, impose more restrictive conditions than the 2004 Act. The stipulation of 17 as the “age of discernment” contrasts with recent Belgian legislation on euthanasia which, in removing all age restrictions, goes beyond event Dutch law that set a minimum age of 12 for children judged mature enough to decide to end their lives.
(One might also argue that it is slightly odd that the “age of discernment” for organ donation is 17 while one may marry at 16 with parental consent in England and Wales and without it in Scotland. While there is no conceivable reason why everything should be subject to an identical age of consent, some of the variations seem to have little obvious rationale.)
As indicated above, although donation for anatomical examination is not automatic, it may only be initiated when the person concerned is deemed capable of giving appropriate consent. With regard to unborn babies, however, they are not considered to have a legal personality, and their treatment is dependent upon gestational age, with the 24 week limit in section 1(1)(a) Abortion Act 1967 necessarily (i.e. for legal consistency) providing the threshold for a number of legal provisions, including: registration of birth; and treatment of foetal remains.
Again there is a degree of irrationality, for although decoupled from the Abortion Act 1967 by the Human Fertilisation and Embryology Act 1990, section 1(2) Infant Life (Preservation) Act 1929 retains the legal presumption that “evidence that a woman had at any material time been pregnant for a period of twenty eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive”. However, the legal concept of “capable of being born alive” within the 1929 Act is broader than, and differs from the medical concept of “viable” upon which the 24 week criterion is based.
Furthermore, once born alive, a child can apply retrospective rights for criminal or civil wrong. In her examination of this complex area, “Whose Baby Is It Anyway?” Freeborn observes that “the foetus has the right to protection against intentional termination of life by anyone, save abortion in circumstances permitted by the Abortion Act 1967 with the mother’s consent. However, there is no protection available against the negligent/reckless actions of the mother and no duty of care owed by the mother to foetus.”
 The London Anatomy Office, which operates on behalf of seven medical schools, states that donated bodies may be used for: anatomical examination; education or training relating to human health; research in connection with disorders, or the functioning, of the human body. Donated bodies are not used for research into specific diseases and organs will not be donated for transplantation
 J and M Green, “Dealing with Death, A Handbook of Practices, Procedures and Law”, 2nd Edn, [2006, Jessica Kingsley Publishers, London].
 Section 40 of the 2004 Act provides an exemption in cases where the body of a deceased person, or relevant material from a human body constitutes a religious relic for the purpose of public display at a place of public religious worship or at a place associated with such a place.
 Section 10 of the 2004 Act provides that documented and valid consent for anatomical examination given before 1 September 2006 is treated as “appropriate consent”.
 In general, the HTA Codes of Practice are issued in accordance with Section 29 of the 2004 Act: they are approved by the Secretary of State following consultation with the Welsh Assembly Government and the relevant Northern Ireland department, have received Parliamentary approval.
 However, under section 1(1)(b) to (d) Abortion Act 1967, an abortion may be carried out after 24 weeks: if it is necessary to save the woman’s life: to prevent grave permanent injury to the physical or mental health of the pregnant woman; if there is substantial risk that if the child were born, s/he would have physical or mental abnormalities and be seriously handicapped.
 The term “capable of being born alive” relates to children who may not live after they are born, and are simply “born alive”, whereas a “viable” child is one whom doctors consider will survive and flourish outside the womb.