By Dr. Nicolas Tschumy

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The establishment and use of a collection of human body parts, such as the Geneva Brain Bank, raise various legal questions. The main issues revolve around two questions:

1- What are the conditions to be met for collecting and preserving the brains of deceased individuals?
2- What are the conditions for (re)using them in contemporary research projects?

The Swiss legal system recognizes every person’s right to dispose of their body within the limits of the law, public order, and morality. This right is an element of personal freedom protected by Art. 10 para. 2 of the Federal Constitution and a personality right within the meaning of Art. 28 of the Civil Code. Thus, any act on the body of a deceased person must, in principle, be based on their consent, expressed during their lifetime. If the person did not express their wishes – which is common in practice – the right to dispose of the body falls to the person most closely related to the deceased. Generally, this is the person who shared the deceased’s life (spouse, registered partner, or cohabitant), subsidiarily their children, their parents, and finally their siblings. The relatives in question must always respect the presumed will of the deceased.

Furthermore, specific legislation exists concerning certain acts on a corpse. For example, medical autopsy, which aims to explain the causes of a natural death, is regulated at the cantonal level. In Geneva, a medical autopsy or a removal from a corpse must be authorized by the express consent of the deceased or their relatives, with the deceased person’s will always having to be respected (Art. 70 para. 1 of the Geneva Health Act).

According to the Federal Act on Research involving Human Beings (HRA), research may be conducted on the body of a deceased person – a fortiori a part of the body – if two conditions are met: the consent of that person to the use of their body for such purposes and the confirmation of death (Art. 36 and 37 HRA). However, this law provides for facilitated conditions if the person died more than seventy years ago: in this case, research is possible, unless the relatives express their disagreement. Moreover, if bodily substances are collected during an autopsy or transplantation, a minimal quantity can be used in anonymized form for research purposes without consent being necessary, provided there is no document attesting to the deceased person’s refusal (Art. 38 HRA). Finally, research projects must be authorized by an ethics committee (Art. 45 HRA).

Beyond this (very brief) overview of these two main aspects, a collection like the Geneva Brain Bank raises numerous other legal questions, notably the issue of the status of the items it contains, but also legal problems over time given the age of the collection and the evolution of the legal framework.

These questions constitute a vast potential field of research, all the more so if one considers that there are very many collections of human body parts in the world, and that the applicable legislation is different in each state (or each canton in Switzerland).

To learn more:

Nicolas Tschumy, Le corps humain après la mort – Le statut du cadavre en droit suisse (The Human Body After Death – The Status of the Corpse in Swiss Law), Lausanne thesis, Stämpfli éditions/RMS éditions, Bern 2022, available in open access on SERVAL (Lausanne academic server).