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Elberte v. Latvia: Whose tissue is it anyway – Relational autonomy or the autonomy of relations?

Dove, E   Mitra, AG   Laurie, G   McMillan, C   Taylor-Alexander, S

Medical Law International   15 (2-3) 77-96

DOI: 10.1177/0968533215618853

February 2016   (First published online December 2015)

A European Court of Human Rights decision rendered in January 2015 (Elberte v. Latvia) has raised a curious question regarding the nature and scope of the right for relatives to consent to or to oppose the removal of a deceased person’s tissues. The decision suggests that Council of Europe member states must clearly define the scope of the right for relatives to express their preferences for removal of a deceased’s tissue or organs – provided such a right has been created in law – and member states must define the corresponding obligation or margin of discretion conferred on experts or other authorities to explain these rights to the relatives.

Notwithstanding, this article asks whether the decision could open the door to a free-standing right for relatives to oppose removal of their deceased relative’s tissues or organs, regardless of the deceased person’s own wishes, in the name of the relatives’ human ‘right to respect for private life’.

A PDF version of the accepted paper can be downloaded here.