Brief legal considerations on the geneva brain bank
The creation and use of a collection of human body parts, such as the Geneva Brain Bank, raises various legal issues. The main concerns focus on two key questions:
What are the conditions that must be met to collect and preserve the brains of deceased individuals?
What are the conditions for (re)using them in contemporary research projects?
Swiss law recognizes the right of every person to dispose of their body within the limits of the law, public order, and good morals. This right is part of the personal freedom protected by Article 10, paragraph 2 of the Federal Constitution and is a personality right according to Article 28 of the Civil Code. Therefore, any action involving the body of a deceased person must, in principle, be based on their consent, expressed during their lifetime. If the deceased person has not expressed their wishes— which is often the case in practice—the right to dispose of the body goes to the person most closely related to the deceased. This is typically the person who shared the deceased's life (spouse, registered partner, or cohabitant), or alternatively, their children, parents, and finally, their siblings. Relatives must always respect the presumed wishes of the deceased.
There are also specific regulations regarding certain actions on a deceased body. For example, medical autopsies, which aim to explain the causes of natural death, are regulated at the cantonal level. In Geneva, a medical autopsy or any bodily sample taken from a corpse must be authorized by the express consent of the deceased or their relatives, with the deceased's wishes always being respected (Article 70, paragraph 1 of the Geneva Health Law).
Under the federal act on research involving human beings (Human Research Act, HRA), research may be conducted on the body of a deceased person—more specifically, on a part of the body—if two conditions are met: the person's consent to the use of their body for such purposes and the confirmation of death (Articles 36 and 37 HRA). However, this law provides for easier conditions if the person died more than seventy years ago: in this case, research is allowed unless the relatives object. Furthermore, if bodily substances are collected as part of an autopsy or transplantation, a minimal amount may be used in anonymized form for research purposes without requiring consent, as long as there is no document indicating the deceased's refusal (Article 38 HRA). Finally, research projects must be authorized by an ethics committee (Article 45 HRA).
Beyond this (very brief) overview of these two main aspects, a collection like the Geneva Brain Bank raises many other legal questions, notably the status of the items it contains, as well as issues related to the passage of time considering the age of the collection and the evolution of the legal framework.
These questions represent a vast field of potential research, especially considering the fact that there are numerous collections of human body parts around the world, and the applicable legislation differs in each country (or canton in Switzerland).
Dr. Nicolas Tschumy
For further reading:
Nicolas Tschumy, Le corps humain après le mort – Le statut du cadavre en droit suisse, thèse Lausanne, Stämpfli éditions/RMS éditions, Berne 2022, available online on SERVAL (serveur académique lausannois).
Photo d'illustration provenant de Unsplash
21 Jan 2025