[영문판례]
Case on Unclaimed Corpses Offered to Medical School as Cadavers
[27-2(B) KCCR 335, 2012Hun-Ma940, November 26, 2015]
This is the first impression case where the Constitutional Court clarifies that unclaimed dead bodies should not be offered to medical schools as cadavers for dissection against one’s will when the dead people expressed his/her opposition to be offered as cadaver prior to death.
Background of the Case
(1) The complainant who has been suffering from lupus, a chronic autoimmune disease, is unmarried female born in 1962. Her parents died long before and she has been out of contact with her siblings for more than 30 years. As she cut ties with all members of her family, she practically has no family members or relatives to claim her dead body when she dies.
(2) She became aware of the existence of the Instant Provision from media report that when a corpse without a claimant is discovered, it can be offered to medical schools for academic and research purposes even against the deceased’s will. Upon this, the complainant filed this constitutional complaint for confirming unconstitutionality of the Instant Provision.
Provision at Issue
The subject matter of this case is whether the main text of Article 12 Section 1 of the Act on Dissection and Preservation of Corpses (revised by Act No. 11519 on October 25, 2012; hereinafter, the “Instant Provision”) violates the Constitution as infringing upon the complainant’s
fundamental right. The provision at issue in this case is as follows:
Act on Dissection and Preservation of Corpses (revised by Act No. 11519 on October 25, 2012)
Article 12 (Offering, etc. of Corpses without Claimants) (1) When a corpse without a claimant is discovered, a Special Self-Governing City Major, the Governor of a Special Self-Governing Province, or the head of a Si/Gun/Gu shall take measures necessary to prevent the decomposition of the corpse and notify the heads of medical colleges of such fact, and when the head of a medical college requests the provision of such corpse for medical education or research, he/she shall comply with such request unless any special ground exists.
Summary of the Decision
1. The legislative purposes of the Instant Provision are to facilitate the supply of cadavers to be the basis of investigation of cause of death and pathologic and anatomical research through providing legal basis for the supply of unclaimed bodies as cadavers and thereby to improve public health and contribute to medical education and research. The legislative purposes are legitimate and the means to achieve the legislative purposes are appropriate.
2. During the recent five years, there has been only one case where an unclaimed corpse was offered to a medical school as cadaver, and this statistics seem to prove the doubtful effectiveness of the Instant Provision. Moreover, most cadavers for the purpose of dissection in medical schools are provided by whole body bequeathals and therefore, even without the Instant Provision, cadavers can be sufficiently supplied by other means.
The current law stipulates that regarding organs or human tissues, different from the whole body, when there is an explicit expression of opposition, it is impossible to transplant or retrieve them against one’s will. Nevertheless, the Instant Provision fails to provide for an adequate
procedure to explicitly show one’s opposition to be offered as cadavers to medical schools when a person dies and his/her body leaves unclaimed. It also makes it possible that an unclaimed dead body can be offered to a medical school for teaching anatomy regardless of the deceased’s intent. Therefore, the Instant Provision does not fulfill the element of the least restrictive means.
3. Although the public interest pursued by the Instant Provision to improve public health and contribute to medical education and research throughout facilitating the supply of cadavers is legitimate, the private interest of the right to self determination infringed on by the Instant Provision by allowing one’s dead body to be offered to a medical school as cadaver cannot be considered less grave. Therefore, the Instant Provision also fails to strike the balance between legal interests.
For the forgoing reasons, the Instant Provision violates the Constitution, as it infringes on the complainant’s right to self determination regarding the disposal of her dead body, in violation of the principle against excessive restriction.