Chapter 16
Developing a new statutory framework

Matters that are relevant in a burial decision

16.9 The matters that inform a burial decision will vary greatly for different people. They may also vary depending on whether we are considering our own death or that of someone close to us.

The preferences of the deceased

16.10 If we consider the interests of the deceased person, for some people it might matter very much that their burial decision be a reflection of the control they exercise over their bodies while alive. They might want to be sure that, if they have expressed a preference for the handling of their body, it is respected after they die. Rosalind Atherton observes that the extent to which an individual can control what happens to their body after death is an expression of their individual autonomy.704
16.11 Some commentators have argued that adequate recognition of a person’s individual autonomy requires that their wishes for their body, if they have been expressed, must be carried out. Thus Heather Conway says that:705

If an individual stipulates a certain form of burial while alive, this should be respected as part of their overall autonomy, with the right to self-determination once again being paramount. The deceased should be the only person to decide what is in his or her best interests and, having made a conscious decision to this effect, ought to dictate the form of burial.

16.12 According to Tanya Hernandez such views reflect a shift in attitude towards death and dying, away from the traditional focus on family and towards a focus on the autonomous individual.706 This “modern autonomy trajectory” began with the enactment of legislation enabling individuals to decide whether to donate their bodies after death.707 It has now been argued that the same position should apply to a deceased’s wishes for final disposal:708

[S]ituations already exist in which an individual may make autonomous choices which transcend death, such as posthumous reproduction and organ donation. If decisions made in life about the fate of the body can already take effect after death, why should we ignore the burial wishes of the deceased?

16.13 Analogies have also been made to succession law, which enacts an individual’s post-mortem wishes for the distribution of their property:709

If by enforcing a will what we care deeply about is respecting the decedent’s wishes and autonomy, then it is not clear why this principle should be defeated in situations where the decedent’s wishes are concerned with the disposal of her own body. On the contrary, it seems unambiguous that a person’s body is one of the most precious things about which she cares, certainly more than her real property.

16.14A person’s cultural and religious beliefs may also influence the degree of importance they place on having their burial wishes treated as paramount. For instance, if a person has converted to another religion during their lifetime against their family’s wishes, it might be very important to them to be able to control their own burial rather than leave it to be carried out in accordance with their family’s religious tradition. Or, if an individual has married someone from a different culture or religion, that person might nonetheless want to ensure that the cultural or religious beliefs of their family of origin dictate or find expression within their burial.

16.15 English courts have legitimated the deceased’s own interest in their burial by reference to international rights instruments that have been incorporated into United Kingdom domestic law. The European Convention on Human Rights, incorporated into English law via the Human Rights Act 1998, guarantees the right to respect for private and family life and the right to freedom of thought, conscience and religion.710 In the Takamore v Clarke proceedings the Court of Appeal majority noted that emerging jurisprudence around these rights “may allow greater effect to be given to the cultural, spiritual and religious beliefs, practices and traditions of the deceased and his or her family”.711

16.16 At the same time, it will not be important to everyone that they are able to dictate what happens to their body after they die. For some people autonomy over their bodies and their decisions might be important while living, but they might be less concerned about their wishes for their dead body, and content to leave it to their survivors to decide.

The needs of survivorsTop

16.17Death is not just about the deceased. Survivors also have a vested interest in the burial decision. Heather Conway and John Stannard note that the impact of death on the family as an institution in its own right can be significant, as death brings disruption of family patterns. The family’s involvement in funeral arrangements can help the family to “realign” in the absence of the deceased.712 It also provides a focal point for the expression of feelings of grief and pain:713

[A] funeral service addresses the emotional needs of a decedent’s survivors by providing a socially acceptable outlet for feelings of grief and pain. Planning the funeral service also assists survivors in coming to terms with the loss and their grief ...

16.18Survivors may have a range of motivations for being involved in the burial decision. People who were very close to the deceased in life might wish to have that relationship taken account of in the way the deceased is farewelled and in the decision as to their final resting place. Some family members might want the deceased to lie in a place that is close and easy to visit, or in a place where the deceased will be surrounded by other family who have passed away. Others might see the ability to dictate burial arrangements as a way to claim or reclaim the identity of the deceased and mark them out as a member of their family or community.714 Others might see it as very important to carry out the deceased’s wishes because they equate this with giving respect to the deceased. Others might feel that being involved and having their voice heard will help them work through their grief.
16.19 Courts are becoming increasingly sensitive to the validity of claims made by family and survivors of the deceased to be involved in the burial decision. In Jones v Dodd, the South Australia Supreme Court made reference to:715

… the need to have regard to the sensitivity of the feelings of various relatives and others who might have a claim to bury the deceased, bearing in mind also any religious, cultural or spiritual matters which might touch upon the question.

16.20 In tikanga Māori the collective wishes of the whānau of the deceased are always considered alongside those of the deceased themselves. In Takamore v Clarke, Elias CJ took this aspect of tikanga into account, making reference to the rights guaranteed by the New Zealand Bill of Rights Act 1990:716

The Court has to consider the wider interests in the claim, which … arise not out of the personal preferences of the living, but out of their obligation to the dead and to those still to come (including Mr Takamore’s descendants), the connections with whom will be diminished in cultural terms by burial away. … decisions in such matters affect the enjoyment of the culture of the hapū in a way which engages s 20 of the New Zealand Bill of Rights Act.

16.21Families who are denied involvement in the burial arrangements, who feel they lack input into the decision, or who are required to carry out a burial in a manner to which they are fundamentally opposed may be inhibited in their grief and may find it difficult to gain closure.

Conclusion: the need for flexibilityTop

16.22The number and range of matters that may be relevant to the burial decision and the number of people who may have a vested interest in that decision give some sense of the potential for dispute. They also illustrate the complex and difficult nature of the task of weighing up these relevant matters and attempting to arrive at some logical and reasoned decision as to who, if anyone, should have the final right of decision.

16.23Courts that have been called upon to undertake this task have, understandably, struggled.717 The difficulties were remarked upon in the Australian ashes dispute case Leeburn v Derndorfer, heard in the Supreme Court of Victoria:718

[C]ases such as the present stand at the intersection of a number of competing principles. These may be competing prescriptions and proscriptions of a cultural, social or religious nature, personal taboos, wider concerns as to public health and decency, the attitudes of the grieving family and friends, and the wishes of the deceased. Moreover, these competing pressures may be difficult to resolve, especially where they are based on feelings which are strongly held at a time of great emotional stress and which are difficult to justify, or even explain, in any rational way. … It is an area of law where one can read in the reported decisions an anguish in the judges seeking to accommodate the concerns of those interested; and their embarrassment at having to deal, often in some haste, with bitter conflicts within families over the remains of a recently deceased relative or friend, which conflicts, although arising out of genuinely held feelings, are perceived as being unseemly.

16.24We might then ask how all these matters can be included within a statutory regime which will, it is hoped, assist all those who are in a burial dispute while respecting the diversity of cultural and religious belief and personal and family interests that are involved. It may not be possible to construct a statutory regime in which all these factors can be given equal value in the range of possible disputes that could arise.719

16.25 The best approach, therefore, is to retain flexibility in the statutory regime. This may be achieved by setting out the broad principles in statute, keeping the terms of the statute open-textured in nature rather than overly prescribed, and making the courts available to decide these matters where parties cannot come to agreement between themselves. Courts would be able to deal with the diversity of matters that could arise in a burial dispute on a case by case basis, weighing them in the balance according to the interests and circumstances of the particular case, and having regard to what is required to do justice between the parties. Guiding statutory factors would assist the Court in that inquiry, and the Court must be accessible and its orders able to be made in a timely manner. We develop that discussion in chapter 17.

16.26 Despite the clear interest in retaining flexibility in any new statutory regime, we might also consider whether a particular statutory emphasis should be placed on any one of the following matters in a burial dispute:

704Rosalind Atherton “Who owns your body?” (2003) 77 ALJ 178 at 184.
705Heather Conway “Dead, But Not Buried: Bodies, Burial and Family Conflicts” (2003) 23(3) LS 423 at 438.
706Tanya K Hernandez “The Property of Death” (1999) 60 U Pitt L Rev 971 at 976.
707At 1022.
708Heather Conway “Burial Instructions and the Governance of Death” (2012) 12(1) OUCLJ 59 at 73.
709Daniel Sperling Posthumous Interests: Legal and Ethical Perspectives (Cambridge University Press, New York, 2008) as cited in Conway “Burial Instructions and the Governance of Death”, above n 708, at 72.
710See for example Burrows v HM Coroner for Preston [2008] EWHC 1387, [2008] 2 FLR 1125 (QB). See the discussion in Heather Conway “Dead, but not buried: bodies, burial and family conflicts” (2003) 23 Legal Studies 423 at 442.
711Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573 at [238].
712Conway and Stannard, above n 702, at 866–869.
713Hernandez, above n 706, at 991.
714Conway and Stannard, above n 702, at 879–880, and discussed generally at 869–880.
715Jones v Dodd [1999] SASC 125 at [51].
716Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [100].
717See the discussion in Conway and Stannard, above n 702, at 881–896.
718Leeburn v Derndorfer [2004] VSC 172 at [10].
719Rosalind Croucher has observed that “a principle which accords paramountcy to the wishes of the deceased will detract from the process for the living”: Rosalind Croucher “Disposing of the Dead: Objectivity, Subjectivity and Identity” in Ian Freckelton and Kerry Peterson (eds) Disputes and Dilemmas in Health Law (Federation Press, Sydney, 2004) 324 at 332 as cited in Takamore v Clarke (CA), above n 711, at [213].