After We Die

The Life and Times of the Human Cadaver

Norman L. Cantor

• Publisher: Georgetown University Press
• Year: 2010
• ISBN:
  9781589017139
• Topic: Medicine
• Subtopic: Ethics in Medicine

What will become of our earthly remains? What happens to our bodies during and after the various forms of cadaver disposal available? Who controls the fate of human remains? What legal and moral constraints apply? Legal scholar Norman Cantor provides a graphic, informative, and entertaining exploration of these questions. After We Die chronicles not only a corpse's physical state but also its legal and moral status, including what rights, if any, the corpse possesses.

In a claim sure to be controversial, Cantor argues that a corpse maintains a "quasi-human status" granting it certain protected rights—both legal and moral. One of a corpse's purported rights is to have its predecessor's disposal choices upheld. After We Die reviews unconventional ways in which a person can extend a personal legacy via their corpse's role in medical education, scientific research, or tissue transplantation. This underlines the importance of leaving instructions directing post-mortem disposal. Another cadaveric right is to be treated with respect and dignity. After We Die outlines the limits that "post-mortem human dignity" poses upon disposal options, particularly the use of a cadaver or its parts in educational or artistic displays.

Contemporary illustrations of these complex issues abound. In 2007, the well-publicized death of Anna Nicole Smith highlighted the passions and disputes surrounding the handling of human remains. Similarly, following the 2003 death of baseball great Ted Williams, the family in-fighting and legal proceedings surrounding the corpse's proposed cryogenic disposal also raised contentious questions about the physical, legal, and ethical issues that emerge after we die. In the tradition of Sherwin Nuland's How We Die, Cantor carefully and sensitively addresses the post-mortem handling of human remains.

Part I
Status and Rights of the Cadaver

Chapter 1
When Does a Person Become a Corpse?

As virtuous men pass mildly away,

And whisper to their souls, to go,

Whilst some of their sad friends do say,

“The breath goes now,” and some say, “No.”

John Donne, “A Valediction: Forbidding Mourning”

Important consequences hinge on when a person becomes dead, that is, reaches the point at which a moribund human officially qualifies as a corpse. The first impact is upon potential medical or quasi-medical inter-venors. Doctors, nurses, and emergency personnel must decide whether to start pounding the flaccid body in an effort to resuscitate a person who is experiencing or has lately experienced cardiac arrest. Pathologists must determine whether the body will be dismantled and minutely examined —that is, whether an autopsy will be performed in order to seek information about the cause of death. (Even with sophisticated diagnostic tools, physicians are often uncertain about the physiological cause of the now-dead person’s demise. An autopsy might provide important information about disease processes leading to better treatments, prevention, or cure of various diseases or conditions.) Medical personnel must also know whether it is permissible to open the inert body surgically and remove tissue for transplantation to desperately ill individuals or to exploit the body for general research and educational benefit. All utilizations of human remains are supposed to await an accurate pronouncement of death.

Death also determines when a body can be readied for ultimate disposition. When can a funeral director come and take the body away? When can a death certificate be prepared, and should the county coroner or medical examiner be notified in order to investigate a homicide or a suspicious death? Can the body now be embalmed? Should a memorial service or some other form of commemoration be prepared? Can final disposal of remains occur —whether by burial, cremation, or other means? Can the corpse’s estate —meaning all property belonging to the deceased —be distributed? The determination of death also fixes the legal status of life insurance, Social Security and other survivors’ benefits, personal credit, and marriage. The time of death can even determine the level of crime committed in the context of possible homicide. In People v. Dlugash, Melvin Dlugash fired four small-caliber bullets into Michael Geller after an accomplice, Joe Bush, had fired three large-caliber bullets into Geller.¹ Mr. Dlugash, despite having fired a bullet into the victim’s brain, could only be convicted of attempted murder, not murder, because the prosecution could not show that Geller was still alive when Dlugash fired.

Recognizing the Permanent Cessation of Breathing

Although we all know (or should know) that sooner or later we will become corpses, we do not necessarily know by what criteria that status will be measured. Nor do we know whether the prevailing criteria are dependable. Can we be sure that the determination of death will be made accurately? Can we avoid premature disposal of our bodies?

For millennia determination of death was an uncertain task, and live persons were sometimes treated as corpses. The legendary feather in front of the nose or mirror in front of the mouth did not always detect flickering life. John Donne’s poem quoted above reflects the uncertainty of declaring death as late as the nineteenth century: “The breath goes now, and some say ‘no’.” An anonymous Victorian limerick goes:

There was a young man at Nunhead

Who awoke in his coffin of lead;

“It was cozy enough”

He remarked in a huff,

“But I wasn’t aware I was dead.”

During the eighteenth and nineteenth centuries in the United States there were many tales of pallbearers tripping and falling, jarring the coffin, and prompting a vigorous reaction from the occupant. In 1894 Eleanor Markham “died” and her body was being carried to the cemetery in a coffin. A pallbearer sensed movement within the coffin. When the coffin was opened, Eleanor admonished: “My God! You are burying me alive!” There were even stories of putative corpses popping the top off their coffins after they had been lowered into a grave.

Other nineteenth-century misdiagnoses of death surfaced at the moment of autopsy. In May 1864 an autopsy was scheduled for a New York man who had died suddenly for unexplained reasons. With the first incision the “corpse” sat up and grasped the doctor’s throat. The man recovered fully but the doctor died of apoplexy. In 1906 an Iowa man was undergoing an autopsy. When his chest was opened and the heart was touched, it began to beat at a normal rate. The man recovered. These were just some of the instances in which an autopsy revived the putative corpse instead of discovering a cause of death.

Sometimes the coffin occupant’s activity came too late to avoid permanent disposal. On some occasions when a body was being disinterred (perhaps because of a descendant’s decision to change the place of burial), corpses were found in positions that indicated that they had died of suffocation in their graves. Premature burial was signaled by signs of futile struggle and disarray of the body. For example, a body might be found sprawled outside of a coffin but still within its locked mausoleum. Or an exhumed body might be found in a very different position than at burial, with the shroud torn and apparent unexplained flesh wounds.

No doubt some of the reports about premature burial were erroneous. A contorted face observed at exhumation might well be attributable to rigor mortis or to other natural degeneration. Damage to corpses and coffins was “not incompatible with putrefactive postmortem changes or with wounds inflicted by rodents.”² Noises and even movements of a coffin could be attributed to the gases that emerged during the course of bodily decomposition.³ Yet books published in 1895 and 1905 purported to document hundreds of cases of premature burials or narrow escapes.

How could so many mistakes about pronouncing death occur? During much of the nineteenth century certification of death by a physician was not a prerequisite to disposition of a corpse. Sometimes an undertaker (who might be the same cabinetmaker who had made the coffin) or a lay relative claiming to have experience in assessing death would pronounce death. Numerous conditions might prompt such a lay observer to conclude mistakenly that death had occurred. Deathlike trances or paralysis could stem from shock, apoplexy, epilepsy, coma, or catalepsy, among other conditions. A heartbeat could be so feeble as to be inaudible.

From the later nineteenth century on, people relied more and more on physicians to pronounce death. In 1866 F. I. A. Boole, a lay health inspector in Brooklyn, New York, was caught selling blank burial certificates that were used by murderers to conceal their crime. That was an impetus for public authorities to require a physician’s certification of death in order to keep more careful track of who died, when, and why.

Physicians themselves constantly sought improved techniques to achieve accurate pronouncement of death. In 1784 a Belgian physician suggested administration of tobacco smoke enemas, which was a technique adopted by the Dutch for a short period. There was no physiological rationale for the enema procedure unless the “pain and indignity of having a blunt instrument violently thrust up one’s rear passage might have had some restorative effect.”⁴ During the nineteenth century physicians and others continued their search for more reliable indices of death. In 1867 a British medical journal collected 102 suggestions for ways to measure death more accurately. The most helpful tool turned out to be the stethoscope. When it was introduced in the 1840s, the stethoscope was a primitive and insensitive instrument made of wood. By 1883, though, the considerably improved stethoscope made absence of a heartbeat a much more reliable index of death than previously.⁵

Whatever the actual number of deaths from premature burials, the widespread perception in nineteenth-century America was that steps could and should be taken to avoid that dismal fate. A variety of techniques were designed to prevent premature burial and accompanying asphyxiation. The wake ritual meant “staying awake with the deceased to make sure he or she was in fact dead.”⁶ Another nineteenth-century technique for avoiding premature burial was to administer enough noxious stimuli to the putative corpse to wake any slumbering body. These stimuli included needles jammed under toenails or into muscles, bugles blasted into ears, wiry brushes rubbed over the body, boiling wax poured on the forehead, and sharp objects shoved up the nose.⁷ Another tool was a pair of sharp tongs used to pinch the nipples of both male and female bodies. Some people placed provisions in their will that dictated taking a precautionary step before burial, whether an incision, amputation of a finger, or application of boiling water. The writer Hans Christian Anderson, who died in 1875, had habitually kept a note by his bed that said “am merely in suspended animation.”⁸ But just in case his persistent optimism turned out to be misplaced, he also instructed that his veins be opened before burial.

Not surprisingly, extreme stimuli aimed at preventing premature burial sometimes proved counterproductive. One nineteenth-century Virginia family observed a custom in which the head of the family would plunge a knife into the newly dead relative. In 1850 the ritual caused such a pierced relative to scream and then die from the knife wound. Another counterproductive technique was to sever the neck arteries to ensure that the dead body stayed dead.

In ancient times, premature disposition of a body was also a concern. Romans and Greeks who disposed of corpses by burial believed that putrefaction was the only sure index of death, so they waited three or four days to make sure that the decay process had begun. As late as the nineteenth century, people in Europe and the United States used a similar technique —waiting for decomposition and stench to prove death. The Germans developed “waiting mortuaries,” buildings where bodies were kept above ground in open coffins until unmistakable decay occurred. In the meantime, each corpse’s hand was attached by string to a signal bell. Such mortuaries —featuring rows of putrefying corpses exposed to paying visitors —existed in Denmark and Austria in the second half of the nineteenth century.⁹ Some American cemeteries of that period had “waiting houses” where corpses could be lodged for several days before burial.

Despairing of the existing capability of definitively pronouncing death, nineteenth-century inventors took numerous steps to allow false-positive cadavers to escape their premature underground home. The first step was to try to permit any awakened cadaver to signal from the grave. Pipes or tubes sometimes connected the buried coffin to the air above ground. Ropes were strung from the interior of the coffin (tied to the head, hands, and feet) to bells or rescue flags above ground. Of course, a rope would only be useful if a cemetery attendant happened to pass during the brief period when the awakened victim could still make sounds or movements.

The next step was to produce “security coffins” to keep the buried victim alive while facilitating escape from premature burial.¹⁰ These inventions included devices for longer, more comfortable underground subsistence as well as for better communication. Some security coffins supplied light, a heater, and a telephone. In 1868 the New Jerseyan Franz Vester designed a coffin with a partial flip-open lid that led into a square shaft that further led to ground level.¹¹

The notion of security coffins persisted for a surprisingly long time. Between 1868 and 1925, twenty-two American patents were issued for such devices. In 1899 a Russian nobleman presented his version of a security coffin during a lecture to the Medico-Legal Society of New York. The society was impressed enough to express its worry about premature burial and to endorse the Russian’s escape coffin.¹² In the 1960s a wealthy Arizonan built a huge vault in a churchyard for his crypt. When he died in 1969 the steel doors to the vault were opened for several hours every night for twelve weeks. Onlookers gathered every night, to no avail. An attempted resurgence of security coffins, which featured a food locker, ventilating fan, chemical toilet, and shortwave radio, failed in the 1970s.

By the twentieth century the hazard of premature pronouncement of death was markedly reduced. State laws required physicians, rather than undertakers or embalmers, to certify death. Physicians were confident of their ability to verify corpsehood, and they scoffed at claims that people were still being buried alive. Also, starting in the 1880s, embalming became a frequent part of a funeral process. Draining blood from the body and substituting chemical preservatives ensured that those supposed cadavers were indeed dead.

All of this did not mean that mistakes in pronouncing death no longer occurred. Even in late-twentieth-century America, occasional reports surfaced of discoveries that death had been pronounced prematurely. In 1993 emergency medical service (EMS) personnel, as well as a medical examiner, declared a forty-year-old New Yorker dead following her severe drug overdose. Two hours later, as an autopsy was about to begin, she sputtered and regained consciousness.¹³ A similar mistake by paramedics and a medical examiner occurred in 2001 in Massachusetts. This time the apparently overdosed corpse was heard rustling in a body bag at a funeral home.¹⁴ Nursing home patients still occasionally “come to life” during or after transportation to a funeral home.¹⁵

An Alternative to Heart Stoppage as the Definition of Death

The traditional measure of death —permanent cessation of heart and lung function —has served as a valid criterion to this day. Yet in the 1960s, with accurate medical assessment of cardiopulmonary death pretty much assured, a new issue emerged in pronouncing death. Medical technology had become capable of artificially sustaining heartbeat and breathing after a person’s brain had completely ceased to function. Medical science, thanks to new immunosuppressive drugs, had also become capable of transplanting lifesaving organs from a newly dead person into a critically ill recipient. The problem was that an organ could be transplanted legally only after death had occurred, yet mechanical maintenance of heartbeat and breathing obstructed a declaration of death during the time that transplantable organs were still usable.

In the early 1960s transplant surgeons using traditional cardiopulmonary criteria were uncertain about when death could officially be declared for people who were attached to ventilators. If the surgeons kept insensate and brain-dead persons attached to machines until all breathing stopped, the vital organs deteriorated in the mechanically preserved body. Cell degeneration begins quickly after death and can impair or destroy harvestable organs and tissue.¹⁶ Even if a dead donor’s body is refrigerated, eyes must be removed within two hours of death; bones and heart valves within four hours; and blood vessels within six hours.

No one in the 1960s wanted to abandon the requirement that death be pronounced accurately before organ harvest. The “dead donor” principle was salutary in assuring potential donors that their death would not be declared prematurely by physicians just to facilitate organ recovery. By barring removal of vital organs until death, medical personnel could reassure donors that transplant would occur only when the donor had expired —that is, when he or she was totally immune to pain, unable to sense any surgical removal process, and incapable of recovery. But sole reliance on cardiopulmonary criteria for pronouncing death was wasting organs capable of salvaging potential recipients’ lives. Physicians were understandably hesitant to salvage organs by detaching ventilators while the body still appeared to be functioning. They feared that they would be declared murderers if they removed a vital organ and detached machinery that was pumping blood and oxygen into a pink, ostensibly throbbing body. (Indeed, a number of criminals sought —unsuccessfully —to avoid homicide charges by claiming that the killer was not the accused who had delivered the vicious blows, but rather the physician who had disconnected the insensate crime victim from the life-extending medical machinery.)

By the late 1960s physicians were determined to end the approach to organ harvesting (from brain-devastated sources) that resulted in the unnecessary death of thousands of potential donees awaiting transplantation while suitable organs deteriorated in a brain-dead donor’s still pink and warm body. They argued tha...