Dialogue: Removal of baby hearts was in breach of the law

No matter what hospitals say, the retention of hearts
and other body parts from dead babies has always been illegal, writes SUSAN WATSON*.

"The past is a foreign country: they do things differently there." The opening lines of L.P. Hartley's 1953 novel, The Go-Between, are often used to explain past behaviour, with the clear, unspoken implication that we would never do something like that nowadays.

This seems to be the tenor of statements made by the medical establishment since it became widely known that Green Lane Hospital holds a collection of hearts and other body parts from dead babies.

But what seems to have been assumed is that, although the removals and retentions were unfortunate, if we apply the standards of today, what took place was not illegal then and strictly is not illegal now.

The issue is viewed as one of informed consent and the hospital has said that it generally became aware of the importance of informed consent after the 1988 Cartwright report. But that report is not strictly relevant, as it deals with the removal of tissue from living people with the ability to give consent.

The issues surrounding dead bodies are more complex, but there is statutory authority that makes it clear the removals have always been illegal.

The tension between the need of doctors to dissect and understand the human body for training and increased knowledge and the rights of people to the intact bodies of their relatives is longstanding.

It is ironic that bodies of the dead gained commercial value and the issue of ownership and custodial rights first arose when the requirements of surgeons and anatomists led to grave robbers who sold corpses and body parts to surgeons.

In 1832 the law sanctioned anatomical examination with the Anatomy Act. The recognition that dissection was necessary to advance medical science was reflected in the preamble to the act. New Zealand adopted the act in 1875 and later incorporated it in the 1908 Medical Act.

Today's legislation is the 1964 Human Tissue Act, based on earlier English legislation. In its preamble, it is described as being an act "relating to post-mortem examinations, the practice of anatomy and the removal of human tissue for therapeutic purposes and for the purposes of medical education and research".

A body is defined as a dead human body but the body of a stillborn child is specifically excluded. Because of the definition of "body" it is clear that the therapeutic purposes referred to are not therapy for the body (since it is too late) but therapy for others. This lends credence to the view that the main purpose behind the act was to assist medical education and research.

Normally when an individual dies in hospital, the hospital is in lawful custody of the body until it is passed to the relatives, who are entitled to lawful possession or property in the remains by operation of common law.

Some deaths in hospitals, including deaths during an operation, must be reported to the coroner, who may order an autopsy or post-mortem examination. The coroner is then the person in lawful possession of the body.

It is important to note that lawful possession is different from the right to possession. Like an undertaker, the hospital or coroner has custody of a body for certain designated purposes.

For the coroner, that purpose is to inquire into the cause of death. This custodial right can be overridden by the common law rights of possession of relatives to the body for burial. On occasions the decision will be made that an autopsy should take place. The Human Tissue Act then becomes relevant.

This act provides that the person lawfully in possession of the body of a deceased person may authorise the removal of any part from the body for use for therapeutic purposes or for the purposes of medical education or research. But there are two important provisos.

The first is that the person lawfully in possession of the body has no reason to believe that the deceased person has expressed an objection to his or her body being so dealt with after death. This exception clearly is not relevant in the case of the dead babies.

However, the second proviso states that the removals may take place if the person lawfully in possession of the body, having made such reasonable inquiry as may be practicable, has no reason to believe that the surviving spouse or any relative of the deceased person objects to the body being so dealt with.

In other words, removal of body parts without the consent of relatives has been in breach of the legislation since 1964. It is also clear from the wording of the legislation that if any relative objects to the removal of organs, the removal should not take place.

Although the Human Tissue Act is perfectly clear, there can be little doubt that it has been consistently breached. How has this come about?

First, the act has been consistently misinterpreted. For example, the 1987 Department of Health code of practice for transplantation of cadaveric organs says that the coroner can consent before a death to the removal of parts of the body if death occurs, without making it clear that the coroner can do this only to the extent that the tissue removed will assist in determining the cause of death. There is also no statutory authority to retain the tissue.

Secondly, grieving relatives have generally not been aware of what has been happening. It is difficult to establish when a body is returned to a family whether it is internally intact. When families do find out that body parts are missing, they are often unaware they have grounds for complaint or are unwilling to make a complaint.

Nevertheless, the issue of unauthorised removal of body parts has arisen before. In March 1991, controversy arose over pathologists removing organs from bodies of Maori without consulting their families.

Dr David Taylor, the president of the Society of Pathologists, said then that doctors who did not return appropriate body samples to relatives after an autopsy could be guilty of professional negligence.

He said it was not normal post-mortem practice to take more than a few grams of tissue from major organs for routine microscopic examination, adding: "I cannot speak for everybody, but I always tell the funeral director what has happened and I make it a practice to return tissue if people want that."

That is lawful practice under the Human Tissue Act but clearly has not been followed by all pathologists.

It can be argued that the publicity about the removal of hearts and other organs from babies who have died, without the consent of their relatives, has served no positive purpose and has dredged up unhappy memories for those relatives.

Others say the families are making a fuss over nothing since the bodies involved were subsequently buried or cremated. That rather misses the point.

The root of the upset for many of the families involved is not that the organs were removed but that they were not asked whether they could be removed and retained. Many have said they would have consented had they been asked. Since 1964, that consent has been required by law.

There is probably no legal remedy for the families involved. But the fact remains that clearly stated provisions of a piece of legislation were breached consistently for many years by the hospitals that retained organs without consent.

* Susan Watson is a senior lecturer in commercial law at the University of Auckland.