Who really owns your body – in life or in death?
It’s a fundamental legal question that has long fascinated Osgoode doctoral student Joshua Shaw – especially when it comes to death.
“How we dispose of the dead or body parts is often connected to broader relationships of power, which is interesting to me,” said Shaw, who currently serves as a lecturer in law at Kent Law School at the University of Kent in the United Kingdom.
The native of Brandon, Man., who expects to complete his PhD at Osgoode in early 2024, has titled his dissertation The Heteronomy of Flesh: A Minor Jurisprudence of the Use of the Human Dead and Tissues. Earlier this year, he was named as a 2023 co-recipient of the prestigious Austin Sarat Award, which is presented each year to a graduate or professional student for an outstanding paper presented at the annual conference of the Association for the Study of Law, Culture and the Humanities. His paper, excerpted from his dissertation, is titled Humic Lawscapes.
“What is done with a body part or a dead body can often be quite sacred or even just a personally important decision,” said Shaw. “I would like to see laws that give individuals or communities the power to make their own determinations or decisions about what is done.”
Historically, that’s been far from the case – especially for marginalized groups. Weak laws, in turn, have helped lead to tragedies like the burial of Indigenous residential school students in unmarked graves in Canada or, globally, the trade in human body parts. Global Financial Integrity, a Washington, D.C.-based think tank that analyzes illicit financial flows, estimates that organ trafficking conservatively generates approximately US$840 million to $1.7 billion annually from about 12,000 illegal transplants.
In his dissertation, Shaw looks at the historical example of William Ramsay Smith, a Scottish physician, educator, naturalist and anthropologist who worked as a coroner in Australia in the early 1900s. His reputation was tarnished in 1903 when he was charged with the misuse of human remains. Despite this, he was later reinstated as a coroner and used his position to illicitly dissect and collect human remains of Aboriginal Australians.
“He was one of the major donors of Indigenous remains to the University of Edinburgh,” explained Shaw. “But this sense of having authority over the use of body parts, ostensibly in the public interest, ostensibly in serving scientific study, has been used to take tissues away from people and has often formed part of quite gross racist institutions.”
Shaw delves into some of these issues in the courses he is teaching this year at Kent Law School: Law and Medical Ethics, Healthcare Law and Ethics, Regulation of Healthcare and Assisted Dying.
As he explains in his Kent Law faculty bio, his critical and theoretical study of law, medicine and the dead has relevance to ethics and public policy, including the regulation of surgery, anatomy, synthetic biology, mortuary practices, and organ and tissue donation and transplantation.
“The history and contemporary issues in this area of law provide a lot of insight into how we approach or understand the human body and what we prioritize or value in terms of what is done with the body,” he explained. “And I think that’s what motivated me initially to focus on this area and continues to motivate me.”
Shaw’s doctoral research has been supported, in part, by a Joseph-Armand Bombardier Canada Graduate Scholarship, provided by the Social Sciences and Humanities Research Council of Canada (SSHRC).