Body, person and identity

For most people, it is intuitively reasonable that there should be particular ethical challenges associated with conducting research on human remains. One of the reasons for this special ethical stance is that human remains comprise material that has been (part of) the body of a living human being. The body is central to our ideas about the individual and about personal identity, be it personal self-image or identification of other people. The body is a fundamental reference in our means of identifying and recognising human individuals, and the concept of the inviolability of the individual is associated with restrictions on access to the body of the individual concerned.

Even within the frameworks of systems of thought and action that do not ascribe much value or dignity per se to human remains, like modern medicine or some parts of the Christian religious tradition, in practice there is usually a recognition of an ethically relevant dividing line between physical objects that have not been (part of) a human body, and material things that have—between a hat and a skull, for example.

In different cultures, human remains can be joined in many different ways to non-human materials, such as prostheses, personal ornaments or other objects. This complicates the picture when it comes to determining how best to proceed with research on human remains.

Respect for the individual and group

Human remains shall be treated with respect. But who decides what dealing respectfully with human remains means? Opinions vary from culture to culture. So it is not only the researcher or research community's ideas about respect that are relevant. It would appear reasonable that respect for the individual or individuals whose remains one is researching should also allow for the views of the individual or culture concerned. Here, finding an acceptable solution will depend on a number of variables (see "Some ethically relevant aspects of research on human remains", below).

The individual or individuals whose remains are in focus may, naturally, be unable in most cases to contribute personally to the dialogue. It is rarely that we have absolutely clear-cut and sure ideas about what a particular individual would have wanted or found acceptable, even if he or she was not from an alien culture or lived in the remote past.

Even if the thoughts and desires of the individual are not known, much can be understood by researchers taking seriously the modes of thought and action that characterised the community the individual lived in. In other words, the views a group holds on the issue should be taken particularly seriously if that group can be considered to be (in part) representative of the individuals whose remains are being researched. There are several types of community in this case—religious, family-based and ethnic.

Representatives of an identity or a community

Generally speaking, therefore, it is important to differentiate between (1) the once living individuals from whom the remains originate, (2) individuals or groups who can be said to have a special relationship with the remains, (3) the people who carry out the research that involves handling human remains, and (4) non-directly involved parties.

Sometimes the researcher will have access to the community in question through historical knowledge. Other times the community will be accessible in the form of living representatives. Even if there are many interpretative possibilities and difficult grey zones as regards differentiating between the individuals who rightfully belong to the same community, this is something that a researcher has a duty to take seriously and to be fully informed about.

It is not always the case that a single population group can be considered to be representative (in part) of the individuals whose remains are being researched: the remains may have links to more than one group. One important consideration to bear in mind is that the political, social or religious identity of the community in question will in some cases be associated with a history characterised by antagonisms, injustice or abuse, even abuse in which the science of the past has played a role. Some physiological research on minorities has, for example, methodological or other links to the racially motivated physical anthropology of the 19th and 20th centuries. In a Norwegian context, the history of research into the Sami people is an example of science with a clear element of ideology and power politics (Kyllingstad 2004).

Some ethically relevant aspects of research on human remains

Sellevold (2009 b) has proposed six variables which are relevant for determining the degree of difficulty associated with research on human remains:

  1. Body treatment: the way in which the body is treated, i.e. either with the remains cremated (least problematic) or unburned (more problematic);
  2. Identified remains, i.e. whether the remains originate from one or more unidentified (anonymous) individuals (less problematic), or from identified (named) individuals;
  3. Chronology, i.e. the age of the remains (less problematic with increased age);
  4. Religious affiliation, for example, Roman Catholics have different ideas than Jews or Muslims about the inviolability of the dead body;
  5. Ethnic affiliation: unknown ethnicity is less problematic than known ethnicity;
  6. Reason for acquisition: research on human remains that have been found or recovered through emergency excavations is less problematic than research on remains that have been exhumed for the purpose of researching them.

None of these aspects of research can be applied mechanically, but demand that discretion be exercised in every case. And to all these aspects there should be added the value of the specific research project: the purpose of the project, and what results are expected to emerge, are also relevant in order to properly weigh the various considerations against one another.

It is perhaps particularly relevant in connection with the question of the value of a research project that, today, much research into human remains involves destructive analysis (analysis where the method requires material to be destroyed in order to, for example, date it, or to perform DNA analysis, or analysis that can say something about the individual's geographic location or the food he or she ate). If the remains are rare or unique, and a research project will involve them being depleted or destroyed, this may also make other relevant research impossible, either now or in the future. In cases this like there is even greater cause to question the value of the project in question, if the objectives can be achieved without destroying the material. (For discussions of this and other ethical challenges associated with research on human remains in different cultural contexts, see Fossheim 2012.)

The National Committee for Research Ethics on Human Remains has issued a set of guidelines to assist researchers in their practical ethical reflections concerning research on human remains.

Legislation

The legal basis for the protection of human remains is provided in inter alia the Norwegian Cultural Heritage Act (Kulturminnelov), the Funeral Act (Gravferdslov) with regulations, the Act relating to treatment of corpses (Lov indeholdende visse Bestemmelser om Behandlingen af Lig) of 4 June 1898, the Act relating to religious communities etc. (Lov om trudomssamfunn og ymist anna), the Planning and Building Act (Plan- og bygningslov) and the Svalbard Environmental Protection Act (Svalbardmiljølov). (Updated laws may be found at www.lovdata.no.) There are also a number of international treaties and conventions that can provide guidelines for the protection of human remains (Sellevold 2009 a). Norway has ratified some of these conventions and treaties, which are thus binding on the Norwegian state, for example the Geneva Convention and the ILO (International Labour Organization) Convention No. 169 on Indigenous and Tribal Peoples (ratified in 1990).

The Cultural Heritage Act automatically protects all archaeological finds of human remains from the period before the Reformation in 1537 as well as Sami finds that are more than 100 years old. The Funeral Act provides protection for human remains in churchyards or cemeteries that are in use, but where churchyards or cemeteries close and are no longer in use for burials, graves and remains are only protected for 40 years after closure. This means that a large group of human remains are without formal legal protection, namely non-Sami archaeological remains from the period following the 1537 Reformation, and Sami remains that are less than 100 years old.

All research projects in Norway that aim to use human skeletal material should apply to the National Committee for Research Ethics on Human Remains.

This article has been translated from Norwegian by Lesley Cawley, Akasie språktjenester AS.