When we talk about “death rights” we often think about euthanasia or capital punishment. Discussions about end-of-life plans or the right to assisted suicide all take place while the person is still alive. A different conversation is about what happens after we die, which are the so-called post-mortem rights – or “after-death” rights. Post-mortem rights seem like quite a blurry concept, especially because it is a delicate topic. This question may seem quite daunting, but confronting our own mortality is an important first step. So, have you ever thought about what will happen to your body after you die?
Most of the post-mortem conversations focus on inheritance rights, such as what happens to the deceased person’s house, or who inherits their money and bank accounts. However, if we think carefully, these are actually questions more about the living, such as the next-of-kin or real estate agencies. The dead body per se is not the centre of the discussion. So, the biggest problem is recognising where the dead body falls in relation to rights. What can be done with a dead body? Which rights need to be respected by others, even after death?
The problem of rights-holders
Are the deceased even subject to human rights? It is often expected that rights-holders are able to actively exercise their rights, something that dead bodies obviously cannot do. Rights-holders are also considered active agents in demanding and exercising their rights, formulating claims, organising themselves in associations, all active behaviours that are, again, impossible for a dead person to partake in.
However, other categories of persons may also find themselves unable to exercise their rights but are still considered rights-holders. For example, migrants who don’t speak the language of their current country; children who have not yet reached the required age for participation in voting processes; severely ill patients who can neither make medical decisions for themselves, nor give consent. The constrains imposed to these groups don’t disqualify them as rights holders. Thus, arguing that the dead aren’t right holders just because they cannot proactively speak up means holding up a double standard.
The dead can talk
“Not even death, the ultimate frontier, can obliterate social divisions”, says writer Maria Cuervo. This is because the fate of a dead body is intrinsically related to the discriminations and oppressions faced in life, including – but not limited to – socioeconomic status, homelessness, violence, migration, gender. There are many situations where a body is vulnerable to abuse, also to losing the rights the deceased enjoyed while living.
For example, a trans person faces the risk of being misgendered upon dying, getting dressed up and named against the way they presented themselves. In the case of refugees and migrants, their body may end up unclaimed because the family have no choice other than not to retrieve the body of their loved one for fearing deportation, or simply because they lack the information and / or funds for a proper burial. Post-mortem dynamics may also spillover to the family, significant others, and friends, proving that death is not an end to social issues.
It has been almost a decade since the picture of Alan Kurdi, the drowned Syrian boy, made it to the headlines, putting a face to the migrant crisis in Europe. In the 1950s, Emmett Till‘s mother decided to make a powerful statement by displaying her son’s mangled corpse – victim of racial violence – in an open casket. The pictures taken of Till’s body galvanised the Civil Rights Movement. Another example is the famous protest on Leonard Matlovich’s tombstone, which reads “when I was in the military, they gave me a medal for killing two men and a discharge for loving one” and highlights LGBTQIA+ discrimination in the armed forces.
Corpses are as vulnerable as any other vulnerable population, especially when the deceased was already part of a marginalised group before dying. Vulnerability statuses persist after death, thus treating a corpse as something different from a human being in their full right-holder capacity may perpetuate discrimination.
Why we should consider death a human rights topic?
Claiming that bodies are something different from a human being is an act of violence that wipes their stories and struggles, especially when these struggles also happened before death, proving more than necessary that we extend human rights to the dead. Philosopher Judith Butler warns us that we only grieve lives that matter, because the value of human life is tied to losing it. Thus, if our aim is truly leaving no one behind, we should include the deceased as well.
The Order of the Good Death is an American collective dedicated to openly talk about death issues, from the biological process to grief. They offer “educational content, guides and resources, information on how to protect your rights before and after death”.
One of the founding members of the Order, funeral director and historian Caitlin Doughty also hosts the YouTube channel “Ask a Mortician”, educating people about death without losing a quirky sense of humour.