ents of a six-year-old keep him up past his bedtime because they are having too much fun at their friends’ house to want to go home yet. It might be said that instances such as these simply show that even the best of parents are prone to moral lapses, but surely the burden is on anyone who thinks so—and wishes to escape the charge of priggishness—to explain just why these are lapses. Nor does it help to weaken matters at the edges: to speak of “enormous sacrifices” as defeating the best-interests standard, or to allow that parental motives may be mixed just as long as the ensuing actions actually secure best interests. The examples plainly show that parental motives for actions involving their children need not have any regard for their children’s best interests, in even the most ordinary circumstances. Instead, they remind us that we bring children into a world where we all have to accommodate each other and where no one, not even the youngest or most helpless character in the romance, can expect the family to revolve solely around her needs. Ethical thinking about prenatal testing, babies at the breast, Ashley X, and indeed, children, parents, medicine, and society in general will be improved if we simply scuttle the family romance and its attendant fantasies of unconditional welcome and best-interests principles, and begin instead to ask concrete questions—for example, about the amount of net harm to which parents can defensibly expose their children. Or more speculatively, about the ethical significance we attribute to certain notions of the integrity of the human form, and whether such ideas play roles in our moral imaginations that, on reflection, we’re ready to endorse. That would put debates in better contact with family life as it is actually (and, often enough, defensibly) lived. At the very least, it would reduce the chances that we’re caught up in irrelevant distractions. We might begin as well to ask about the amount of net harm to which parents are exposed when they must provide round-the-clock care but do not have enough help from other quarters to do an adequate job. Solutions like prenatal testing, bottle feeding, and growth attenuation and hysterectomy might well seem far less attractive to overworked, burned-out, financially and physically drained parents if they were not so often left to manage largely on their own.

Prenates, Postmorts, and Bell-Curve Dignity

B Y S T E P H E N B AT E S

The cradle rocks above an abyss, and common sense tells us that our existence is but a brief crack of light between two eternities of darkness. —Vladimir Nabokov, Speak, Memory I’m sure that love will never be A product of plasticity. —Frank Zappa, Plastic People

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t Gunther von Hagens’s “Body Worlds” and copycat shows such as “Bodies: The Exhibition,” human cadavers preserved through von Hagens’s patented method of “plastination” are posed in lifelike arrangements and sliced open to reveal organs and muscles. With ticket prices that commonly exceed twenty dollars, the exhibitions are quite profitable. Many visitors call them educational. Others are appalled. “Body Worlds” represents “egregiously disrespectful treatment of the dead,” writes Ruth Levy Guyer of Haverford College. “Von Hagens’s plastination project requires the kind of conduct condemned, often by religion, as disrespect, desecration, or defilement of the dead,” maintains Anita Allen of the University of Pennsylvania Law School. “Body Worlds,” in the view of a German priest, is nothing less than “Auschwitz as a theme park.”

Stephen Bates, “Prenates, Postmorts, and Bell-Curve Dignity,” Hastings Center Report 38, no. 4 (2008): 21-25. July-August 2008

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The critics focus on dignity rather than rights—an approach that leaves room for recognizing obligations to things that cannot hold rights, like cadavers, Yorkies, van Goghs, and sequoias. Our rights die with us; our dignity lives on. Still, what society owes the dead is often analyzed by comparison to what it owes the living. In a 1917 article, the legal scholar Austin Wakeman Scott wrote that a farmer “may if he chooses sow his land with salt; it is thought that self-interest will act as a sufficient curb,” but after death “there is no such curb,” so a judge might nullify such a provision in a will. As a thought experiment, we can go a step beyond Scott and analyze society’s obligations to those who are no longer alive by comparison to what is owed to those not yet alive— zygotes, embryos, and fetuses. The notion of at least partial symmetry in this realm isn’t novel. The Catholic Church recognizes full-fledged dignity interests in embryos and fetuses by opposing abortion, as well as some dignity interests in the dead by prescribing particular burial rights. To be sure, prenates and postmorts, as one might call them, are not wholly analogous. Prenates at a certain point experience pain; postmorts do not. We are born on nature’s schedule but can, if we wish, die on our own; in Donne’s words, “I have the keys of my prison in mine own hand.” Fear of the dead is an ancient superstition—according to Akop P. Nazaretyan, the oldest of humans’ irrational fears. And from ancient folk tales to contemporary zombie films, postmorts are usually malicious, regardless of the decedents’ character during life. By contrast, prenates rarely spook us (the films Rosemary’s Baby and Aliens are exceptions), and their moral slate is too blank for them to be wicked. How can we decide where human dignity begins and leaves off? One approach would place the two ends of this continuum well before birth and well after death. Some believe that human life arises at the earliest possible moment, when sperm and egg merge. Where would the posthumous equivalent fall? The answer isn’t obvious. One might posit the moment at which postmorts no longer look human, perhaps when the flesh has fallen away. But that’s not parallel: zygotes, embryos, and early fetuses hardly look human, a point stressed by proponents of legalized abortion and stem cell research. (As I’ll elaborate below, the human appearance of remains may prove relevant in another respect.) If dignity begins long before any trace of humanness appears, then it must continue long after the last vestige of humanness vanishes. So we’re obliged to respect the posthumous dignity of dust. One problem: how can we bury it? Another approach would hold that human dignity begins and ends with one’s existence as an independent, breathing entity. If, as some maintain, life begins at birth and not a moment sooner, then perhaps dignity interests end with equal abruptness at death. Family members may honor the memory of the deceased, but neither they nor anyone else owes anything to the husk of the now-departed being. Scientists should feel free to keep blood flowing and systems operating so that the “neomort,” in Willard Gaylin’s term, can be a training ground for surgery, test subject for drugs, source of trans22

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plantable organs, incubator of antibodies, and surrogate womb for prenates. Or doctors can take what can be transplanted, medical students can study anatomy through dissection, and the debris can be unceremoniously carted off. If the students want to have a bit of fun—dress the cadaver and stage photos, or retain parts for curio collections, or, indeed, commit necrophilia or cannibalism—so what? It’s a shell, and any view to the contrary is sheer sentimentality. Of course, no one would permit such actions. As Oliver Wendell Holmes notes in The Common Law, if the law fails to reflect popular sentiment, the people will take matters into their own hands. Testifying before the President’s Council on Bioethics, mortician-essayist Thomas Lynch observed: I once saw an Episcopalian deacon nearly decked by the swift slap of a mother of a teenager dead of leukemia [after the deacon had reassured her that the body is simply a shell]. “I’ll tell you when it’s just a shell,” the woman said. “For now and until I tell you otherwise, she’s my daughter.” The woman was asserting the long-standing right of the living to declare the dead dead. Just as we declare the living alive through baptisms and lovers in love by nuptials, funerals are the way we close the gap between the death that happens and the death that matters.

No society in recorded history has treated death and cadavers with indifference. On the contrary, as Donald E. Brown writes in Human Universals, all peoples have “rites of passage that demarcate the transfer of an individual from one status to another. They mourn their dead.” Except as symbols of subordination—such as a tribe’s collection of body parts of those killed from another tribe—the cadaver has been treated with respect. Some bodies have been used for medical education or experiments, or, more recently, harvested for organs. At the end, though, whatever parts of the cadaver endure are treated as Western culture dictates, generally with burial or cremation. The “Body Worlds” idea of preserving the fresh corpse and exhibiting it for profit—and, at least theoretically, doing so into perpetuity—raises a host of questions. The Bell Curve

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any laypeople and medical professionals, as well as many legal systems, confer greater respect on the developing prenate as birth nears. “Human life develops by degrees,” writes Michael Sandel in The Case against Perfection: Ethics in the Age of Genetic Engineering. At life’s other end, we might view the postmort’s claim as diminishing from the moment of death. “The bodies of the newly dead are not debris nor remnant, nor are they entirely icon or essence,” Thomas Lynch writes in The Undertaking: Life Studies from the Dismal Trade. “They are, rather, changelings, incubates, hatchlings of a new reality.” We fade in, live, and then fade out. The beginning and the end can mirror each other without approaching perfect symmetry. In a hospital fire, Sandel asks, would you rescue a five-year-old girl or a tray of twenty embryos? In a hospital fire, likewise, would you save a nearlyJuly-August 2008

born fetus (assume that you could bring essential medical monitors while the woman in labor saved herself) or would you rush past the delivery room to rescue twenty new cadavers loaded on a forklift? The question answers itself. To be sure, one could debate the proposition that dignity gradually declines after death. In other realms, the passage of time increases our obligations of respect. The destruction of the Egyptian pyramids would be a tragedy; the destruction of the pyramidal Luxor Casino in Las Vegas will be trivial. But with human remains, surely time subtracts dignity. When anthropologists excavate a burial ground, our response differs depending on whether the graves are months old or centuries old. Although my focus here is on the preborn and the dead, I should note that society’s duty of respect rises and falls during life itself—at least to some extent. Infanticide was a lawful and common form of population control in Greco-Roman civilization; its defenders include Seneca and Pliny the Elder. Although we condemn infanticide today, we limit our obligations to the young in other respects. Contemporary law forbids a child from driving a car, drinking alcohol, buying a firearm, getting tattooed, attending an R-rated movie alone, gambling, voting, marrying, or exercising various other rights. Children’s freedom of speech is likewise constricted. For a lengthy period of one’s life, the passage of time brings additional rights—and then the process reverses. Many jurisdictions refuse to hire a novice police officer or firefighter beyond early middle age. The law often imposes mandatory retirement ages, between fifty and sixty, on police officers, firefighters, air-traffic controllers, airline pilots, and others. Car rental companies in some countries impose both minimum and maximum age limits. As the age limits demonstrate, law and morality often seek to impose sharp lines—you can legally drink alcohol at 12:01 a.m. on the day you turn twenty-one, and not a moment sooner—resulting perhaps in an uneven bell curve, more akin to ascending and descending staircases. Prenatally, the boundaries have varied considerably. “Tertullian held that the soul was not conceived along with the body,” writes the sociologist Jonathan Imber. “Augustine believed that the unborn did not possess a soul until the fifty-eighth day of intrauterine life. Canon law established further that males were animated with a soul on the forty-fifth day and females on the eightieth day.” More recently, Justice Harry Blackmun told his Supreme

Court colleagues that the first trimester, emphasized in his 1973 decision in Roe v. Wade, “is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.” What might be a reasonable postmortem equivalent? “Friends and relatives have an I-Thou relationship with a corpse, not an I-It relationship,” the legal scholar Jesse Dukeminier observes, echoing Lynch. A skeleton, though, would seem a better candidate for an I-It relationship. Why? For postmorts and prenates alike, dignity seems to depend to some extent on resemblance to a human. A zygote seems less human than an eight-month-old fetus, a fresh cadaver more human than a skeleton. So the dignity downshift could occur when the flesh vanishes and the postmort turns to bone (barring preservation in salt, peat, or the like). Indeed, some cultures hold a second funeral at that point and move the bones to a different site. We could also set the boundary still further from the moment of death. We might say that the deceased’s dignity interests diminish as the world changes. When it becomes a place she could never recognize, or perhaps when the last person to know her dies, her interests drop. This suggests a possible distinction between a “Body Worlds” figure and a mummy. The mummy may be thousands of years old, whereas the “Body Worlds” corpse is less than twenty years old (von Hagens began preserving full cadavers in the 1990s). A revivified mummy would confront an alien world; a revivified “Body Worlds” figure would not. To be sure, the mummified figure might, during life, have been horrified by the thought of public display, whereas the “Body Worlds” cadaver might be that of an informed, consenting donor (as opposed to “Bodies: The Exhibition,” which gets preserved cadavers from China—the exhibition’s medical adviser admits that he has no proof of informed consent). However, the rule against perpetuities in law limits a decedent’s power to dispose of property beyond roughly a hundred years after death; we might apply a similar calculus to the mummy. As for the consenting donors in “Body Worlds,” the law sometimes overrules even sound-minded consent. During life, you can donate one of your kidneys but not your liver. After death, the courts will ordinarily honor a request to be professionally cremated, but not to be cremated in your fireplace. You may yearn to have family sauté your body and eat it, but, consent notwithstanding, they will be prosecuted for cannibalism if they comply.

What society owes the dead is often analyzed by comparison to what it owes the living. We can go a step beyond and analyze it by comparison to what is owed to those not yet alive— zygotes, embryos, and fetuses.

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Resemblance to a living human admittedly does not correlate with time in two other circumstances, in addition to the corpses preserved naturally. First, cremated remains may come from someone who died a week ago or a century ago. The law treats “cremains” differently from cadavers, whether because of their indeterminate age, their lack of resemblance to humans, their safety (unembalmed cadavers can present health hazards), or a combination of the three. Nevada, for example, requires special permits for transportation of a cadaver and allows families to bury the dead on their own property only with Health Division authorization and only in counties of fewer than fifty thousand people. Cremains, by contrast, “may be transported in this state in any manner, without any permit therefor, and may be disposed of in any manner desired, or directed by the decedent.” Second, plastinated cadavers, even though they’re threequarters plastic, look human. And because they’re three-quarters plastic, they will probably last for millennia. Consequently, objections to “Body Worlds” and its imitators, to the extent that they stem from the recentness of the figures’ deaths, may weaken as time of death becomes indeterminable (the objections rest on other foundations as well—including resemblance to a living human). The Great Equalizer?

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nder another set of approaches, different decedents merit different levels or durations of dignity, just as the purchase of a papal indulgence could once shorten one’s time in purgatory. The bell curve for a person might lose its symmetry, with a downward slope that is sharper or gentler than the norm. Prenate analogies are admittedly incomplete here. Church sextons of yore commonly “pounded in” a grave to bury a new casket atop an old one. Following their example, exclusive occupancy of a grave—like exclusive occupancy of a hospital room—might cost more, with the decision left to the deceased or the next of kin. Placing the decision with them would allow medical use of those who die without known family and without instructions for the disposal of their remains, as is the case now. As for prenates, abortion laws similarly delegate their fate to the family: usually the would-be mother alone, though in some states—another example of the bell curve’s upward slope during life—a pregnant minor generally must seek parental consent. Another approach would use death as an opportunity to balance society’s books. We might, for example, take the bodies of welfare recipients for dissection, as was commonplace in the nineteenth century. Or we might exempt military veterans who have donated their bodies to science from seemingly undignified experiments, such as being laid out for decomposition at University of Tennessee’s Anthropology Research Facility. Federal law has lengthened the dignity claims of deceased Native Americans. Under the 1990 Native American Graves Protection and Repatriation Act (NAGPRA), museums must return Native American remains, no matter how old, to the 24 H A S T I N G S C E N T E R R E P O R T

tribe if it still exists. According to the Department of the Interior, the remains of some thirty-two thousand Native Americans have been shipped to their tribes, while museums continue to hold the remains of thousands of non–Native Americans. One can see the repatriation as an act of respect for Native American religions, some of which hold that the decedent’s spirit cannot rest until the remains are buried in accordance with tribal rites, or as a reflection of the fact that an identifiable community exists to receive the remains—indeed, a community that demands their return. But one can also view NAGPRA as a sort of book-balancing—repatriation as belated reparations to Native Americans. We took your land, but here are your ancestors’ skeletons. Extraordinary treatment of the cadaver often expresses the community’s judgment of the now-ended life. A state funeral, for example, expresses public gratitude while at the same time advancing a governmental interest—namely, reinforcing the onlooker’s sense of membership in the political community. In The Sacred Remains, Gary Laderman elaborates on how the dead sometimes serve the state: From Gettysburg National Cemetery to the Challenger disaster, the federal government has acted to preserve the memory of certain significant individuals and moments in national history. Its interest in the dead goes beyond questions of propriety and respect for individuals who make up the republic. . . . Assuming a role once reserved for the church, the state confers immortality on particular national heroes and sacrality on specific locations that solemnize the sacrifices and triumphs of American citizens. . . . The cosmology of American political life is saturated with death and the bones of the dead.

In order to strengthen the ties between citizen and state, officials may overrule the wishes of the deceased and impose a sort of posthumous community service. Lenin, for example, wanted to be buried in his family plot—a wish echoed by his widow and siblings but overruled by Stalin. The decision also stands as an example of Laderman’s point about the overlap between religious devotion and political devotion. “It was only when comrade Stalin finished his speech,” Leon Trotsky wrote, “that it dawned on me in which direction these originally incomprehensible arguments and instructions—that Lenin is a Russian person and must be buried in the Russian manner—were going. The Russian manner, in accordance with the canons of the Russian Orthodox church, that makes relics out of our saints.” Just as posthumous honors partly reflect community gratitude, posthumous indignities, such as those inflicted on Benito Mussolini’s corpse, reflect community ire. Hitler in his last days repeatedly—almost obsessively—ordered that his postsuicide remains be burned beyond recognition. According to the historian Joachim Fest, he had learned of Mussolini’s postmortem mortification and feared the same. Indeed, governments have long reinforced social, cultural, and legal norms in this fashion. In Europe, the bodies of executed criminals were often hung for public display while they rotted, or—equally July-August 2008

disquieting to many prisoners facing execution—were dissected. Even a corpse might be hanged, as when a convict committed suicide in jail. The hangman could not be cheated. War, too, has given rise to such practices. Japanese conquerors in 1597 collected Korean noses as trophies, according to historian Nigel Barley’s Grave Matters. In Vietnam, some American troops sliced the ears off dead Viet Cong and wore them on necklaces. Such abuses are partly communicative, to convey a message of domination. “When we die, we relinquish our individuality,” writes Christine Quigley in The Corpse: A History. “Void of personality, the corpse joins the masses.” Just as embryos and fetuses are for moral purposes indistinguishable, in this view, so are cadavers and skeletons. It’s an appealing position. One is born without virtue or sin, and death wipes the slate clean again. But like the mere-shell view of cadavers, Quigley’s approach collides with public sentiment. In particular, polity and state feel the need to honor the lives of their heroes, even centuries after death. A museum would provoke little controversy by displaying the skeleton of a forgotten soldier from the Revolutionary War. If the Mount Vernon curators exhumed George Washington’s skeleton from the mausoleum and placed it on display it would be quite another story. The bones of the two may be indistinguishable, but the value that society attaches to them differs greatly. The bell curve’s downward slope depends on the individual.

searching scrutiny of a trial,” which would consider all pertinent factors, including the wishes of each decedent, their religious devotion, their relationship to the survivor, and the rules of the church. “Removal at the instance of a wife or of kinsmen near in blood to satisfy a longing that those united during the life shall not be divided after death . . . may seem praiseworthy and decorous when removal at the instance of distant relatives or strangers would be arbitrary or cruel. The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose,” Judge Cardozo wrote, adding: “We have sought, not to declare a rule, but to exemplify a process.” In the end, Judge Cardozo’s totality-of-circumstances standard seems optimal for weighing the dignity claims of the prenate and the postmort against competing interests. A sufficiently compelling reason might overcome even the highest dignity claim, whether it’s the claim of a prenate just before birth—the probable loss of the mother’s life, for example—or a postmort just after death—imagine someone, even a beloved figure such as John F. Kennedy, whose bone marrow contains the sole ingredient of a vaccine that can forestall an epidemic. Of course, different cultures hold different views of how compelling this need must be, at both ends of life. In some countries, poverty justifies a late-stage abortion. Some countries, too, make organ donation compulsory. But limits still exist in those countries. You can’t abort a nearly full-term fetus or slice up a newly deceased corpse for frivolous reasons. A Cardozo-like balancing test would probably permit the use of stem cells in medical research intended to prolong lives and reduce suffering, but bar their use for, in Leon Kass’s gruesome hypothetical, concocting “a great delicacy, a ‘human caviar.’” Likewise, the standard might respect the donor’s wish to have her cadaver used in anatomy classes in medical schools, but not her wish to be plastinated and displayed for profitable entertainment, on the ground that even with fully informed consent, certain actions collide with human dignity. As those examples suggest, neither prenate nor postmort is ever, in ethical terms, just another thing. A woman can abort her fetus but not display it on her mantel. An archaeologist can study skulls of the long-deceased but not string them from trees for Halloween. Pre- and posthumans, from conception until dust, are entitled to some measure of human dignity.

For postmorts and prenates alike, dignity seems to depend to some extent on resemblance to a human. A zygote seems less human than an eight-month-old fetus, a fresh cadaver more human than a skeleton.

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inally, we might employ a totality-of-circumstances test, a flexible standard rather than a flat rule. Under a standard, a court can deprive you of your right to drive based on your mental and physical acuity; under a rule, children cannot drive until they reach a certain age, regardless of how careful and conscientious they are. In the 1926 case Yome v. Gorman, a New York court rejected a flat rule in favor of a flexible standard for determining whether to move postmorts from one graveyard to another. A woman, evidently a lapsed Catholic, sought to have her late husband, mother, brother, and two infants disinterred from a Catholic cemetery and reburied elsewhere so that she could join them when her time came. The church refused to comply. The state’s highest court, in an opinion by Judge (and future Supreme Court Justice) Benjamin Cardozo, ordered “the

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