Testamentary Freedom and Organ Donation


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There are many reasons why an individual should have the right to decide what happens to his or her body after death. One is that it allows people to have a say in how their bodies will be disposed of, especially after a prolonged illness or injury.

Another reason why people want to have the final disposition freedom on what happens to their bodies is because of their value and significance to them. They place great importance on their cottage and silverware, as well as the way they care for them throughout their lives.

Yet, when it comes to disposition, most individuals are ensnared in a legal regime that restricts their ability to make these decisions. In Ontario, for instance, the No Property Rule, a common law tradition that protect your identity after you die on the ability of testators to direct the disposition of their property upon death, has a profound influence on testamentary freedom in this area.

While it may be true that the No Property Rule has been a somewhat satisfactory or acceptable legal reality in the past, this paper argues that a changing understanding of property rights and values regarding the human body requires a new approach. This approach requires the enactment of enhanced testamentary freedom over both the disposition and donation of a decedent’s remains.

1. The No Property Rule and Williams v Williams Limit the Testamentary Freedom of Ontarians to Dispose of Their Bodies By Will

The common law in Ontario has a long tradition of upholding the testamentary freedom of testators to dispose of their real and personal property by will, in part because it is often difficult to dispense with these assets after a person’s death.

However, this venerable tradition has been undermined in recent years by two important factors: the influence of the No Property Rule and the principles from Williams.

In particular, a growing number of Ontarians have expressed their preference that their remains be disposed of through organ or tissue donation in a written instrument. While this has increased the availability of organ donations, it also has eroded some of the basic protections that would otherwise have been afforded to those who prefer that their remains be disposed of in other ways.

2. Conclusion: The Ontario Legislature must adopt a legislative framework that upholds reasonable testamentary freedom alongside the No Property Rule while addressing Williams. This can be achieved by introducing new legislative provisions that are similar to sections 5 and 6 of British Columbia’s Funeral Services Act, which empower individuals to express written preferences regarding the disposition of their remains without requiring them to view their wishes within a proprietary framework.Take a look at this link for more information about cremation;https://en.wikipedia.org/wiki/Alkaline_hydrolysis_(body_disposal)