On International Overdose Awareness Day, new research considers post-mortem rights

Each year, on the 31st of August, people around the world come together to mark International Overdose Awareness Day. Initiated in 2001 by Melburnian Sally J Finn, International Overdose Awareness Day is an opportunity to pause, grieve, memorialise lives lost, and to stimulate frank conversations about overdose and other drug-related harms and how to prevent them.

In recent years, several countries including Australia have experienced an increase in the number of drug overdose deaths. This ongoing crisis, which has been exacerbated by the COVID-19 pandemic, requires multifaceted solutions. This is because there are a multitude of forces that shape overdose deaths, including the legacy of the war on drugs, the lack of drug treatment services for those who want to access them, and gaps in harm reduction services such as supervised injecting facilities. A drug overdose death is not inevitable but shaped by these forces. This is a critically important legal, political and social problem.

On International Overdose Awareness Day, we memorialise the lives of those we have lost. But how should we remember those lost to drug-related deaths, and what political and ethical issues might be at stake in this remembering? How are those we have lost depicted in these and other settings, such as the media? What does it mean when those who have died are not able to consent to or manage the ways their lives are subsequently represented? And how should the law respond when, for instance, graphic images of these deaths are circulated publicly?

A recent paper co-authored by GLaD Research Lead Associate Professor Kate Seear, ARCSHS Director Professor Suzanne Fraser and UNSW Scientia Fellow Annie Madden AO, and published in the Australian Feminist Law Journal, explored these issues. Titled ‘The problem of the subject: The politics of post-mortem rights in the aftermath of drug-related deaths’, it considers what values and concepts are available for assessing such questions, and whether they are they well suited to the distinctive issues raised by drug-related deaths.

A key concept underpinning the law is that those who have died should have limited legal rights because they can feel no shame. The idea, in other words, is that the prospect of individual shame or humiliation should be a key guiding principle for the law. But this approach is flawed because it assumes that the capacity to feel shame whilst we are alive is what matters most. As lead author Kate Seear explains:

This overlooks how shame works, including the social, relational and constitutive dimensions of affect, and the work that death does on the people left behind. We can all be affected by the way our friends, family members and loved ones are remembered. The sharing of graphic images of drug-related deaths has the potential to shape how publics think about drug use, overdose deaths and the value of the lives that are lost to them. These images might move us in many ways, including in ways that dehumanise and stigmatise people who use drugs.

For people who use drugs, the question of what might be said about them – in life and in death – is not simply an individual concern or ‘problem’. The article argues that when people die, there is something at stake for those who still live. Those who live have the capacity to be affected by post-mortem practices, including the sharing of graphic images. The stakes may be higher when those who die have participated in or have been accused of highly stigmatised and criminalised activities, such as drug use.

The paper invites us to think about what other principles should shape legal approaches to those who have passed away, including a different approach to shame and affect. It concludes that existing approaches to post-mortem rights are in need of reform.

If you would like to hear more about this research or read the article, please contact the GLaD team.

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