The Irish Human Rights Commission (IHRC) is aware that concerns have been raised in relation to the sourcing of the bodies used in the exhibition entitled "Bodies" including by Gay Mitchell MEP.
The IHRC’s initial review of the legislation and relevant human rights standards, indicates that this issue raises questions about the balance between the right to freedom of expression under Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 19 of the International Covenant on Civil and Political Rights and Article 40.6.1 of the Irish Constitution and issues around respect for deceased persons and their families.
The European Court of Human Rights (ECtHR) has not commented directly on issues which arise in this situation. In general, however, when considering issues of this nature, the ECtHR has indicated that in relation to the treatment of the remains of a deceased person considerations under Article 8 (right to respect for family and private life) can arise.
Freedom of expression under the ECHR is given a broad interpretation, and limitations on the right to freedom of expression should pursue a legitimate aim such as the protection of public morals and should be proportionate to the aim sought to be achieved.
Against this background, the IHRC considers there is scope for the Irish Government to consider reviewing Irish legislation and regulations in relation to exhibitions of this nature in the future to ensure that documentation is available that establishes evidence of origin and consent, within reason. The IHRC also considers that the statutory framework dealing with the treatment of anatomical specimens in Ireland which dates back to the Anatomy Act 1832, may merit some updating.
Some more detailed considerations from the Commission’s preliminary review are offered below:
1. Exhibitions
Origin of the bodies
The IHRC considers that the primary responsibility for ensuring that the bodies have been donated in a legal and ethical manner for the purposes of anatomical research or for the purposes of an anatomical exhibition rests with the originating authorities. The IHRC cannot speculate as to the manner in which the bodies in the present exhibition came to be part of this exhibition as the donation of these bodies took place at an unknown time outside the jurisdiction of Ireland and therefore these events are outside the competence of the IHRC.
Legality of public exhibitions
In relation to the Irish Government’s obligations, the IHRC has found that it is unclear from its initial review of the relevant legislation what legal obligations, if any, are placed on the State to ensure that a public exhibition that is taking place in Ireland is fully legal or is in compliance with the standards in Ireland relating to the items to be exhibited. In contrast to the situation in the UK and Scotland, the Anatomy Act 1832 in Ireland does not provide guidance on the extent to which the exhibition or public display of bodies is permitted and under what circumstances.[1] In some jurisdictions the display of the "Bodies" Exhibition gave rise to legislative proposals that sought to amend the law to require such an exhibition to provide documentation demonstrating clear evidence of consent and a permit to show the origins of bodies.[2]
Human Rights considerations which apply to holding of exhibitions
The IHRC considers that human rights standards in relation to such an exhibition would centre on the right to freedom of expression as protected under Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 19 of the International Covenant on Civil and Political Rights and Article 40.6.1 of the Irish Constitution. Limitations on the right to freedom of expression should pursue a legitimate aim such as the protection of public morals and should be proportionate to the aim sought to be achieved. The definition of freedom of expression under the ECHR is extremely broad and includes the freedom to receive and impart information, ideas and artistic expression.[3]
2. Treatment of remains
Regulation of the use of human remains
From the IHRC’s initial analysis of the law in this area, it appears that in general there is a dearth of legal regulation on the entire area of the treatment of human remains in Ireland. The statutory framework dealing with the treatment of anatomical specimens in Ireland dates back to the Anatomy Act 1832. This provides the regulatory framework for regulating schools of anatomy in Ireland. In the United Kingdom, this Act has been replaced by the Anatomy Act 1984 and some of the provisions of the Human Tissue Act 2004 are also of relevance to the treatment of deceased persons.
Human Rights considerations which may apply to the treatment of remains
Where the European Court of Human Rights has considered issues in relation to the treatment of remains, it has looked at Article 8 rights to family and private life. While the Court has not pronounced directly on the type of issue raised here, the case-law of the Court indicates that in relation to the treatment of the remains of a deceased person considerations under Article 8 can arise. This is particularly the case where the relatives of the deceased through an act or omission by State authorities suffer an interference with their right to private or family life following the death of the deceased. For example the Court has found that the delay by a judicial authority to issue a burial certificate and return the body of a four year old daughter to the applicant parents constituted an interference with the parent’s right to family life (Pannullo and Forte v. France no. 37794/97).
Specific human rights standards relating to the application of biology and medicine that are designed to protect the dignity and integrity of human beings have been developed at the Council of Europe level in recent years. In particular the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (1997) aims at guaranteeing respect for human rights and freedoms with regard to the application of biology and medicine. Ireland has not signed the Convention.
While the Convention is largely concerned with the protection of living persons there are some Articles in the 2002 Additional Protocol on Organ Transplantation that may be of relevance to the treatment of deceased persons:
- Article 17 provides, "Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained. The removal shall not be carried out if the deceased person had objected to it."
- Article 18 goes on to provide that "[d]uring removal the human body must be treated with respect and all reasonable measures shall be taken to restore the appearance of the corpse."
- Article 21 further provides that "[t]he human body and its parts shall not, as such, give rise to financial gain or comparable advantage".
- The explanatory note on this provision elaborates that under this provision organs and tissues proper, including blood, should not be bought or sold or give rise to financial gain for the person from whom they have been removed or for a third party, whether an individual or a corporate entity such as, for example, a hospital. However, technical acts (sampling, testing, pasteurisation, fractionation, purification, storage, culture, transport, etc.) which are performed on the basis of these items may legitimately give rise to reasonable remuneration.
ENDS/
For further information please contact:
Fidelma Joyce
IHRC
Tel: 01 8589601
Mob: 087 783 4939
Notes to Editor
The IHRC is an independent statutory body established to promote and protect human rights within Ireland. The "human rights" the IHRC is entitled to have regard are those rights, liberties and freedoms conferred on, or guaranteed to persons by the Constitution and or by any agreement, treaty or convention to which the State is a party.