Presumed consent or ‘body snatching’?

Elberte v Latvia ECtHR App. No. 61243/08 13 April 2015

Next month the Human Transplantation (Wales) Act 2013 comes in to force. Described as the most significant piece of legislation passed by the Welsh Assembly, it will make Wales the first UK country to introduce a ‘soft opt-out’ system for organ and tissue donation. From 1 December 2015 a deemed consent system will operate for organ donation where the presumption will be that people aged 18 or over, who have been resident in Wales for over 12 months, want to donate their organs at their death, unless they have specifically objected.

This Act has laudable objectives and is anticipated to save countless lives through a 25% rise in the availability of organs for transplant.

However, those who favour an opt-in system warn of the excesses that can happen if state control and oversight of such a system is lax. Such risks were shown in stark detail in a recent European Court of Human Rights decision involving Latvia, where shocking abuse of a ‘presumed consent’ system was revealed.

The facts 

When Ms Elberte’s husband was killed in a road traffic collision in Latvia in 2001 she was aware that an autopsy was being undertaken; what she was not told was that at the autopsy a 10 cm x 10 cm area of tissue from her husband’s dura mater (outer layer of his meninges) was removed, retained and later supplied to a pharmaceutical company based in Germany under a State-approved agreement.

Two years after her husband’s death the Latvian Security Police informed Ms Elberte that a criminal inquiry had been opened into the illegal removal of organs and tissue at autopsies for supply to a pharmaceutical company abroad. She learned that tissue had been removed not only from her husband’s body but also from hundreds of other persons over a time-span of some nine years. However, no one told her at that time what tissue or organs had been taken from her husband, indeed she was only provided with that information when she took her case to the European Court several years later.

The relevant law in Latvia in 2001 allowed citizens to express a binding consent or objection to the use of his or her body after death which would be denoted by a special stamp in his or her passport. A system of presumed consent for organ donation operated in that organs and tissue from a deceased donor could be removed for transplantation purposes if that person had not objected to such removal during their lifetime. Furthermore in the absence of express wishes of the deceased, removal may be carried out if none of the closest relatives (children, parents, siblings or spouse) objected.

Under the scheme for the removal and supply of tissue abroad that had been implemented by State officials there should have been verification of whether there was any objection by the donor to the removal of organs or tissue during his or her lifetime. However Ms Elberte’s husband’s passport had not been available at the time of his autopsy and the doctors had made no attempt to contact his relatives or establish their wishes. Indeed it was later revealed that it was common practice for those who carried out the tissue removal not to attempt to contact relatives of the deceased and even where they did have some contact with the relatives, they neither informed them of the imminent removal of tissue nor obtained their consent.

The Government’s position was that this approach was in accordance with the national law which did not impose any obligation on a doctor to make specific enquiries in order to ascertain if there were any close relatives and to inform them of possible tissue removal. Indeed the Government asserted that it was primarily the duty and responsibility of the deceased’s relative to inform the medical personnel in good time of the deceased person’s objection to his or her tissue removal and that the national law had not prevented either the deceased or the applicant, as his closest relative, from expressing their wishes in relation to tissue removal.

In the course of the criminal inquiry the Security Police and various prosecutors had disagreements as to whether or not domestic law was sufficiently clear to allow any person to be prosecuted in relation to the tissue removal; after a number of delays in the criminal process the five year statutory limitation period ran out and so the criminal prosecution was discontinued. Unable to gain satisfaction in her own country Ms Elberte brought her claim to the European Court of Human Rights.

She alleged breach of article 8 ECHR (the right to private and family life) in failing to obtain her consent and violating her husband’s dignity, identity and integrity by removing her husband’s tissue without his or her prior consent. She also submitted that the unlawful tissue removal amounted to inhuman and degrading treatment, as was prohibited by article 3 of the Convention.

The Government conceded that Ms Elberte’s complaint fell within the ambit of “private life” under art.8, but did not accept that it concerned “family life”. The Government denied there had been any breach of art.8, arguing that a legitimate system of ‘presumed consent’ had been operating in Latvia at the material time. All the law required was the absence of any objection by the deceased person prior to his death and the absence of any explicit objection by the close relatives to the tissue removal; there had been no such objections. Furthermore, said the Government, the tissue removal had had a legitimate aim – namely the protection of health and the protection of the rights of others.

As for the art.3 claim, the Government argued that as only a small amount of the dura mater had been removed from the body and even if Ms Elberte might have experienced a certain level of emotional suffering and distress on account of the removal of tissue without her consent or knowledge, such suffering did not attain the minimum level of severity required for a breach of art.3.


It is no surprise that the judges of the European Court of Human Rights unanimously found an art.8 violation. Such large scale state ‘body snatching’ without the awareness of its citizens was always going to be disapproved of by the Court. Indeed it arguably represents just the sort of state excesses against its citizens that the ECHR was drafted to prevent.

The ECtHR found that Ms Elberte had a right under domestic law to express consent or refusal in relation to the removal of her husband’s tissue and agreed that this came within the scope of art.8 in so far as it touched upon her private life. The Court emphasised that it was not delivering any views on whether a system of presumed consent to organ donation was appropriate per se – after all a system of “presumed consent” is not innovative; it was at the time the established law in eleven other member States.

But it is necessary under art.8(2) for any system of presumed consent to be ‘in accordance with the law’: and this includes being formulated with sufficient precision to afford adequate legal protection against arbitrariness. The law must have sufficient clarity regarding the scope and exercise of any discretion conferred on the authorities. The right to express consent or refusal in relation to tissue removal must be sufficiently clear and foreseeable in its application as regards the exercise of this right.

What this meant in practice was that the Latvian state should have established appropriate registers to record citizen’s wishes in respect of organ/tissue removal and put adequate procedures in place for the wishes of the deceased and their relatives to be sufficiently clearly established. In these respects the Latvian authorities had wholly failed.

As the removal of tissue in the present case was not an isolated act, but was pursuant to a State-approved agreement with a pharmaceutical company abroad, it was all the more important that adequate mechanisms were put in place to counter-balance the wide margin of discretion conferred on the doctors to carry out removals; but this had not been done.

Breach of Article 3 

The facts of this case are startling enough – but what makes the case even more notable to the lawyer is the success of Ms Elberte’s art.3 claim. Although the Court found that her claim on behalf of her deceased husband was inadmissible, it held that Ms Elberte could herself claim as a victim for breach of art.3 of her own rights. She had demonstrated that she had been directly affected by the removal of her deceased husband’s tissue without her consent and so she could be considered a “direct victim” in that regard.

Her own Article 3 right not to be subjected to inhuman and degrading treatment had been violated by what had been done to her husband without her knowledge or consent.

The ECtHR has repeatedly emphasised that ill treatment must attain a minimum level of severity to fall within the scope of art.3. That assessment is relative depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. If the purpose of the treatment is to humiliate or debase the victim this is a relevant factor to be taken into account, however, the absence of any such purpose could not conclusively rule out a finding of violation of art.3.

The Court noted that respect for human dignity formed part of the very essence of the Convention. The human body must still be treated with respect even after death. Treatment would be considered “degrading” within the meaning of art.3 when, inter alia, it humiliated or debased an individual, showed a lack of respect for human dignity, or when it aroused feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. For treatment to be ‘degrading’, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment.

For a separate violation of art.3 to be found in respect of the primary victim’s relatives, there must be special factors in place giving their suffering a dimension and character distinct from the emotional distress inevitably stemming from the violation of the deceased himself. Relevant elements included the closeness of the family bond and the way the authorities responded to the relative’s enquiries.

The Court noted that in the present case Ms Elberte had to face a long period of uncertainty, anguish and distress in not knowing what organs or tissue had been removed from her husband’s body, and in what manner and for what purpose this had been done. Her suffering was caused not only by the breach of her right to object as the closest relative and the ensuing uncertainty about what had been done in the Forensic Centre, but was also due to the intrusive nature of the acts carried out on her deceased husband’s body and the anguish she suffered in that regard on learning of the events.

The Court said it “had no doubt” that the suffering caused to Ms Elberte amounted to degrading treatment of her contrary to art. 3 and accordingly found a violation of that provision. She was awarded 16,000€ for non-pecuniary damage as well as the full (although very modest) sum she claimed for costs and expenses of 500€.