American Journal of Law & Medicine

"Since I Must Please Those Below": Human Skeletal Remains Research and the Law

The ethics of non-invasive scientific research on human skeletal remains are poorly articulated and lack a single, definitive analogue in western law. Laws governing invasive research on human fleshed remains, as well as bio-ethical principles established for research on living subjects, provide effective models for the establishment of ethical guidelines for non-invasive research on human skeletal remains. Specifically, non-invasive analysis of human remains is permissible provided that the analysis and collection of resulting data (1) are accomplished with respect for the dignity of the individual, (2) do not violate the last-known desire of the deceased, (3) do not adversely impact the right of the next of kin to perform a ceremonious and decent disposal of the remains, and (4) do not unduly or maliciously violate the privacy interests of the next of kin.

I.   INTRODUCTION
II.  FORENSIC ANTHROPOLOGY: THE ANALYSIS OF HUMAN SKELETAL
     REMAINS
III. HUMANS AS RESEARCH SUBJECTS
     A. Research on the Living: The Nuremberg Code and Its Progeny
        1. The Nuremberg Code
        2. Declaration of Helsinki
        3. The Belmont Report and the Federal "Common Rule"
     B. Research on the Dead
        1. Human Remains and Property Rights
        2. Human Remains and Privacy Rights
IV.  DISCUSSION: THE SEARCH FOR COMMON GROUND
     A. RESEARCH THAT RESPECTS THE DIGNITY OF THE DEAD IS PRIMA
        FACIE ETHICAL
     B. RESEARCH THAT UNDULY DELAYS, INTERFERES WITH, OR PREVENTS THE
        TIMELY DISPOSITION OF THE REMAINS VIOLATES THE SURVIVORS'
        RIGHTS OF SEPULCHER
     C. RESEARCH THAT UNDULY INTERFERES WITH, OR PREVENTS, THE NEXT
        OF KIN FROM RECEIVING THE REMAINS IN SUBSTANTIALLY THE SAME
        CONDITION THEY WERE IN WHEN RECOVERED VIOLATES THE
        SURVIVORS' RIGHTS OF SEPULCHER
     D. RESEARCH THAT INFRINGES ON THE PRIVACY RIGHTS OF NEXT OF KIN
        THROUGH THE PUBLICATION OR PRESENTATION OF RESEARCH FINDINGS
        THAT SHOCK THE CONSCIOUS OF THE COMMUNITY IS UNETHICAL
V.   CONCLUSION: THE OBLIGATION TO REMAIN HUMAN

I. INTRODUCTION

On the morning of August 30, 1850, Dr. John White Webster, noted Harvard professor, was hanged by the neck for the murder and dismemberment of the prominent Boston Brahmin, George Parkman. (2) Though the gloss of money and social status may have intrigued the general public at the time, it was the first recorded use of forensic anthropology in a courtroom, establishing Commonwealth v. Webster as an enduring footnote in American jurisprudence. (3) Among the Commonwealth's expert witnesses in that trial were two well-respected members of the Harvard medical faculty, Jeffries Wyman and Oliver Wendell Holmes, Sr. (the latter then serving as the Dean of the medical school). Both testified that the calcined and fragmented human skeletal remains recovered from the furnace in the basement of the medical school were consistent with the physical characteristics of the late, unfortunate George Parkman. (4)

In the 160 years since Webster, forensic anthropology has developed from a fledgling science, often practiced by non-anthropologists as a collateral area of expertise, into one of the principal tools in the field of human remains identification. (5) Despite the phenomenal advances in DNA analysis in recent years, the identification problems posed by mass disaster events, such as the 9/11 attack on the World Trade Center, the Indian Ocean Tsunami of 2004, or the political and genocidal pogroms of Rwanda and Cambodia, remain daunting. (6) For researchers struggling with the aftermath of the ethnic cleansing in Bosnia and Herzegovina, for example, "[i]t has become clear that DNA analysis, though a crucial element in determining identity, is not in itself sufficient to provide a definitive identity for all these mortal remains." (7) Because of commingling and the intentional scattering of victims across the landscape, done specifically to thwart later identification efforts, there is a demonstrated need to "resort in each case, notwithstanding a positive DNA match, to other methods in order to arrive at a positive, definitive and official identification." (8) The basic "post-mortem element [in the identification process] is an anthropological analysis of the mortal remains." (9)

As with any science, forensic anthropology is dynamic. On-going research on human skeletal remains to develop new and population-specific techniques is vital to the advancement of the discipline. Though most of this research is non-invasive, requiring little or no destruction of the remains, (10) there are ethical considerations that are nonetheless implicated whenever the subject under analysis is a human being--whether alive or dead. This Article is not a discussion of willed-body programs. The research rights and responsibilities associated with cadavers willfully donated to science are spelled out in the gifting documents. (11) But the ethics of research on private individuals, especially those who were victims of personal or state-sanctioned violence, natural disasters, or who were simply indigent and died unknown, are another matter. Is it ethical to conduct research on the remains of a 9/11 victim, the results of which will not benefit the victim, but may allow a future victim of Hurricane Katrina to be identified? Is it ethical to research remains exhumed from a mass grave in Rwanda for the purpose of establishing baseline data that may aid in the identification of Bosniak men and boys killed in the Srebrenica massacre? These are the real-world ethical questions facing forensic anthropologists every day, and, unfortunately, aside from non-binding and voluntary professional codes of ethics, (12) there is scant legal precedent to define the parameters within which human skeletal remains may be appropriately analyzed and used in research.

Largely to blame for this lack of guiding precedent is the fact that until relatively recently, certainly post-World War II, little could be done with skeletal remains; the science for identifying individuals from bones simply did not exist. (13) Consequently, much of the law that developed to govern the treatment of human remains--read to mean "bodies"--has proven problematic when applied to fragmentary, often extremely sparse, human skeletal remains.

The discussion that follows focuses briefly on what forensic anthropology is, how it is used in the western legal system, and on the on-going need for research employing newly derived data. The discussion then shifts to several analogous lines of legal precedent that are relevant to the analysis of human skeletal remains; specifically, the political and statutory framework that constrains research and experimentation on living humans, as well as the twin legal theories of property rights and privacy rights that are traditionally applied to the non-living. From this discussion, four common and essential elements are distilled, and a legal foundation on which to build a model of human skeletal remains analysis is proposed. The elements are: (1) respect for the dignity of the individual whose remains are under analysis; (2) non-interference with the next of kin's right to receive the remains of the deceased in a timely manner; (3) non-interference with the next of kin's right to receive the remains of the deceased as intact as possible under the circumstances of their recovery; and (4) a balance between the needs of science (in this case, as it applies to the process of human identification) and the next of kin's right to privacy as it relates to details about the deceased.

II. FORENSIC ANTHROPOLOGY: THE ANALYSIS OF HUMAN SKELETAL REMAINS

When the parents of Jason Daubert and Eric Schuller brought suit against Merrell Dow Pharmaceuticals, few could have predicted the far-ranging impact of the case on forensic science in the United States. The Supreme Court's 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. (14) affirmed the applicability of Federal Rule of Evidence 702 to scientific testimony in federal courts. Although many states have yet to adopt the Daubert test, (15) the ripple effect on forensic science has been, and continues to be, profound. (16)

The use of forensic anthropology in the United States (its cameo appearance in Webster notwithstanding) dates to 1878 with the publication of Thomas Dwight's The Identification of the Human Skeleton: A Medico-Legal Study. (17) As practiced today, forensic anthropology is often defined as "the application of anthropological methods and theory--particularly those relating to the recovery and analysis of human remains--to resolve legal matters." (18) More often than not, these legal matters involve "the identification of more or less skeletonized remains known to be, or suspected of being, human." (19)

Sadly, the need to identify human skeletal remains is not uncommon, despite the fact that most people have little exposure to the mass graves of genocidal pogroms or the scattered remains of victims of homicidal serial predators. (20) Seen or largely unseen by the public, it is a problem that evokes major policy issues at the state and federal level. For example, in 2014, the Pima County [Arizona] Office of the Medical Examiner reported the recovery and analysis of 129 "Undocumented Border Crossers," largely from Mexico, Guatemala, Honduras, and El Salvador. (21) Sixty-six percent of these remains were skeletonized and required the analytical skills of forensic anthropologists to identify. (22) Sadly, these figures are not statistical aberrations. (23)

The analysis of unknown human skeletal remains involves the application of techniques that historically have been developed by forensic anthropologists from research on known skeletal populations. Often, these populations belong to large museum collections, derived from willed-body programs at medical schools such as those curated at the Smithsonian Institution and the Cleveland Museum of Natural History. (24) Unfortunately, such collections are known to suffer from significant sample biases. For example, they are disproportionately comprised primarily of white males, often elderly, and often from lower socioeconomic strata with all of the concomitant nutritional and health problems. (25) These biases have the potential to affect the applicability of the techniques derived from these collections because modern populations may be biologically and developmentally diverse.

The problem with the use of potentially biased techniques in skeletal analysis becomes clear in the light cast by the 1993 Daubert ruling. Specifically relevant is Federal Rule of Evidence 702(c) that requires expert scientific testimony be "the product of reliable principles and methods." (26) In Daubert, the Court interpreted this to mean that for "a particular scientific technique, the court ordinarily should consider the known or potential rate of error." (27)

Population-specific techniques that minimize the problems created by sample bias are necessary to determine the known or potential rate of error for a technique used in the analysis of a specific skeleton. (28) The closer the reference population resembles the unknown genetically, culturally, and socioeconomically, the more reliably the error rate of the technique can be calculated. (29) But therein lies the dilemma: what are the ethical parameters guiding the research on skeletal populations necessary to develop these population-specific techniques? This question can be a particularly sensitive one when the population of interest has already been victimized by crime, state-sanctioned genocide, or systematic political oppression. In addition, there is scant case law, and even less statutory law, on human remains research to guide the researcher. To formulate ethical parameters for the unknown dead, especially those represented only by skeletal remains, we may either invent them whole cloth, or we may extract and adapt usable principles from the rules governing the living and the recently dead. This Article proposes the latter.

III. HUMANS AS RESEARCH SUBJECTS

A. RESEARCH ON THE LIVING: THE NUREMBERG CODE AND ITS PROGENY

1. The Nuremberg Code

Respect for the dignity of the individual forms the core principle governing all research and experimentation on human subjects. This principle of respect is not, or at least should not be, controlled by death. Individuals' reputations, their legacies to the world, and the concerns of their survivors do not disappear or diminish with the mortal remains. Nowhere has this principle of respect been better articulated than in the Nuremberg Code.

To a war-weary world, the events unfolding in August 1947, in the bombed-out rubble of Nuremberg, Germany, garnered little notice. (30) The International Military Tribunal had issued its verdicts the previous October, sentencing the former top Nazi elite to death. To many observers the final chapter of World War II appeared to be drafted, if not completely written. (31) What followed, with considerably less public interest, was a series of twelve trials conducted by American authorities, with American judges, applying American rules. These "Subsequent Nuremberg Trials" (32) focused on the less well known Nazi leadership, including a group of twenty physicians and scientists tried en masse for crimes against humanity related to their experimentation on human subjects under the guise of medical research. (33) It was not the sixteen guilty verdicts handed down by the Military Tribunal on August 20, 1947, including seven sentences of death, for which the "Doctors' Trial" is best remembered. (34) Rather, it was its statement of "certain basic principles [that] must be observed in order to satisfy moral, ethical and legal concepts" of "permissible medical experiments." (35) Though not the first code of its kind, (36) the ten principles delineated by the court that day in August 1947 constitute what is collectively known as the Nuremberg Code. Together, those principles form the basis of modem bioethics. (37)

Developed in response to the depravities of the Nazi regime, the principles articulated by the judges at Nuremberg were not directed toward "therapeutic research that may benefit the subject," but rather were devised to "regulate pure research, which is designed to provide new knowledge but is in no way intended to benefit the subject." (38) The Nuremberg Code, by its design, governs research and experimentation on the living, and as a consequence lacks direct applicability to research conducted on the dead. (39) The real importance of the Nuremberg Code is the governing spirit that it instills in the discussion of all research conducted on humans.

The Nuremberg Code is a form of non-binding national common law. (40) The trial was conducted by American lawyers and according to American procedural rules. The defendants were tried before a bench of three American judges, two of whom were incumbent State Supreme Court justices. (41) However, because Military Tribunal No. 1, as the court officially was known, was an anomaly in the United States court system, its holdings lack the force of stare decisis. (42) That procedural reality, combined with the fact that the Nazi crimes were conducted on an unprecedented scale not subsequently duplicated, likely explains the failure of American courts to fully integrate the Nuremberg Code into case law. (43) Another contributing factor to the lack of integration may be that the ten principles of the Nuremberg Code were read near the conclusion of the Tribunal's judgment and sound more like dicta than holding. (44) Nonetheless, the Nuremberg Code continues to shape western research on humans through its doctrinal progeny, such as the Declaration of Helsinki. (45)

As articulated in the court's verdict, the Nuremberg Code stresses the dignity of human life. (46) It focuses on the autonomy and authority that the individual possesses with regard to his or her person. With its emphasis on informed consent (Principle 1) and right of rescission (Principle 9), the Nuremberg Code presages, in many regards, the strands of privacy and property rights that thread through modern medico-ethical controversies, such as abortion and the right to die. (47)

The Nuremberg Code, as read that August day in 1947, held in part that:

1. The voluntary consent of the human subject is absolutely essential.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature....

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury....

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment....

9. During the course of the experiment, the human subject should be at liberty to bring the experiment to an end, if he has reached the physical or mental state, where continuation of the experiment seemed to him to be impossible.

10. During the course of the experiment, the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe ... that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject. (48)

The Nuremberg Code was the first universally recognized articulation of the rights of human research subjects, (49) yet more than sixty years after it was first read, no country has adopted the code in its entirety. (50) Nevertheless, it represented the first significant step in establishing the ethical parameters of research and experimentation on human subjects. The next step was taken seventeen years after Nuremberg in the city of Helsinki.

2. Declaration of Helsinki

The Declaration of Helsinki emphasizes the important role of research conducted for the sake of general humanity and represents a subtle elaboration on the Nuremberg Code.

On October 10, 1962, the United States Congress amended the Federal Food, Drug, and Cosmetic Act to require physicians engaged in investigative research to inform their subjects of that research and to obtain their consent. (51) The amendment followed the worldwide thalidomide tragedy and Merrell Pharmaceuticals' attempt in 1960 to introduce its version of the drug (Kevedon) into the U.S. market through the backdoor of a clinical investigation program. (52) In implementing the amended Act, the United States Food and Drug Administration began issuing regulations aimed at standardizing research on experimental drugs. These regulations, however, "did nothing to clarify the ambiguous and open language of the law's consent requirement." (53)

Tracking the events unfolding in the United States, the World Medical Association ("WMA"), meeting in Helsinki, Finland in 1964, recognized that the "advent of large-scale drug trials," such as that attempted by Merrell Pharmaceuticals, "made it necessary to address the issue of human experimentation in a far different context than either the Nazi concentration camp [i.e., Nuremberg Code] model or the simple Hippocratic doctor-patient relationship model." (54) The result was the adoption of an international code of ethics on human experimentation. The document, most commonly referred to as the Declaration of Helsinki ("DoH"), (55) drew heavily on the principles articulated in the Nuremberg Code, and was intended to be "a guide to each doctor [performing] clinical research." (56) But here, the child deviated significantly from the parent by recognizing "a fundamental distinction ... between clinical research in which the aim is essentially therapeutic for a patient" and nontherapeutic clinical research in which the aim of the researcher is "purely scientific and without therapeutic value to the person subjected to the research." (57) Although the DoH retained the Nuremberg Code's respect for the dignity of the individual, the WMA also recognized that "it is essential that the results of [nontherapeutic] laboratory experiments be applied to human beings to further scientific knowledge and to help suffering humanity." (58) This represents "a subtle shift in the balance between the responsibilities of the researcher to individual research participants," and the need to "further scientific knowledge" for the sake of alleviating "suffering" to "humanity." (59)

3. The Belmont Report and the Federal "Common Rule"

The federal government's Belmont Report and the "Common Rule" derived from it draw heavily from both the Nuremberg Code and the DoH. Both represent a reemphasis on the dignity of the individual subject in human research and experimentation.

The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (the "Commission") came into being by public law on July 12, 1974, (60) in no small part due to reactions to the 1972 revelation of the Tuskegee syphilis experiment that began forty years earlier. (61) The Commission's mandate, aside from serving as a public relations salve, was to craft basic ethical principles to govern all biomedical and behavioral research funded by the United States government. (62) Meeting at the Smithsonian Institution's Belmont Conference Center in February 1976, the Commission drafted what came to be known as the Belmont Report. (63) Not surprising, given the public outrage in the aftermath of the Tuskegee experiment, (64) the Commission effectively nudged the pendulum away from the social importance of such research, where the DoH had pushed it, (65) back in the direction of human dignity as articulated by the Nuremberg Code. (66) In doing so, the Commission abandoned the therapeutic-nontherapeutic distinction drawn by the Helsinki framers, (67) and re characterized research as having "a formal protocol that sets forth an objective and a set of procedures designed to reach that objective." (68) To obtain such an objective, whether therapeutic or nontherapeutic in nature, the researcher should follow "basic ethical principles" that are "generally accepted in our cultural tradition, [and] are particularly relevant to the ethics of research involving human subjects: the principles of respect of persons, beneficence and justice." (69) Echoing the first principle of the Nuremberg Code--i.e., the necessity of informed consent--the Belmont Report reestablished respect for the human subject as the first principle of research ethics by setting out two moral requirements for researchers: "the requirement to acknowledge autonomy [of the subject] and the requirement to protect those with diminished autonomy." (70)

The Belmont Report, like the DoH, recognized that human subject research involves balancing the potential harm to the individual against the benefit to the larger society of which the individual is a part. The "beneficence" of the research was viewed not as a goal but as an obligation to "maximize possible benefits [of the research] and minimize possible harms [to the individual]." (71) This idea imposes dual responsibilities on both the researcher and the "members of the larger society [who] are obliged to recognize the longer term benefits and risks that may result from the improvement of knowledge and from the development of novel medical, psychotherapeutic, and social procedures." (72)

The Belmont Report presented a model for structuring ethical research, but it was not technically binding on any agency. (73) Rather, its legacy in United States biomedical research lies in the fact that its principles were formally captured in a series of ethical guidelines adopted by federal agencies involved in human subject research and research funding, notably the Department of Health and Human Services (74) and the Food and Drug Administration. (75) By 1991, fifteen other federal departments and agencies had adopted the principles of the Belmont Report in what came to be known as the federal "Common Rule." (76) The Common Rule guidelines apply to "all research involving human subjects conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research." (77)

The Nuremberg Code and its progeny, such as the federal Common Rule guidelines, provide a relatively clear framework for research and experimentation on the living. …

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