Commodification of Human Remains: Public Policy in Contract Law - and Beyond

Although human remains have long been regarded as worthy of legal protection, they are increasingly treated as commodities. The trade in human remains via the internet, their display within religious institutions such as the Roman Catholic Church, and their use in commercial plastination exhibitions illustrate distinct forms of commodification. The manuscript aims to examine the commodification of human remains through a comparative legal analysis across common law and civil law jurisdictions. It explores public policy and contract law in relation to these practices. The study also examines how various legal traditions—particularly in Europe and the United States—address these issues and explores the potential role of the res extra commercium doctrine in regulating dealings with human remains. There are a number of key findings in this article. The regulation of human remains varies significantly, with some jurisdictions explicitly prohibiting trade, while others rely on public policy to void such transactions. The Human Tissue Act of England, Wales, and Northern Ireland bans public display without a license but exempts religious relics. Public policy plays a crucial role due to ethical concerns and considerations of human dignity. Legal protections are stronger for newly deceased human remains, while the long-dead face less scrutiny, creating regulatory inconsistencies. Commercial exhibitions like Body Worlds lack explicit consent from the deceased. At the same time, relics in the Roman Catholic Church hold economic significance, suggesting a form of commodification that courts and policymakers largely overlook. As final observations, this study argues that human remains should be treated as res extra commercium to prevent their trade and commercialization. In the absence of clear statutory prohibitions, courts should refuse to enforce contracts involving human remains based on public policy concerns. The European Convention on Human Rights may shape future regulations. Persistent legal uncertainty allows commodification to continue, underscoring the need for more vigorous enforcement and policy reforms. By examining legal inconsistencies and the role of public policy, this paper contributes to a more coherent and ethically sound legal framework.