Introduction

Last year, I wrote a blog post about estate planning for tattoo artists, which focused primarily on the intellectual property rights of tattoo artists in their tattoo designs and the ways in which such rights conflict with the rights of the people who actually bear such designs on their skin.[1] In response to my post, I received an interesting article about the developing technique of post-death tattoo preservation.[2]

The article focuses on Save My Ink Forever,[3] a U.S. company that helps people preserve and display their tattoos after their death. Branded as “An Everlasting Memorial”, Save My Ink Forever will coordinate tattooed skin preservation with the relevant local funeral home or crematory, which will remove the skin and send it to the company for processing and display in UV glass.

As I did more research on this topic, I had a key legal question to which I didn’t know the answer: if an individual wants to have their tattoos preserved after death for loved ones or for public display (i.e. a donation to a museum),[4] are they legally protected to do so? In other words, would a direction in one’s will to have their tattoos preserved after their death be legally binding upon their executors, trustees and beneficiaries?

This post attempts to answer these questions by looking at the existing law in this area.

Can the skin bearing a tattoo be considered property, and thus be dealt with in a will?

Section 2 of the Ontario Succession Law Reform Act (“SLRA”) states that, “[a] person may by will devise, bequeath or dispose of all property (whether acquired before or after making his or her will) to which at the time of his or her death he or she is entitled either at law or in equity”.[5] The SLRA suggests that a person can only give by will the property to which they are entitled at the time of their death. So, under Ontario law, can one’s skin be considered to be their property?

To answer this question, it seems that what we should really be asking is: are there property rights in the human body? The answer is, for the most part, no. While a person can freely deal with their real and personal property (i.e. their houses, clothing, money) in their will, at common law there exists a long-standing rule that there is no property in a body or human remains.[6]

That being said, in Canada, there are a few minor exceptions to this general rule. One such exception for reproductive material. Stored reproductive material (i.e. frozen sperm or embryos) has been treated as property in various contexts.[7] While this is a small step towards greater property rights in one’s body, there have been judicial and academic calls to expand the notion of body as property for testamentary purposes.[8] Note that this case law refers only to material removed before death; while no local case law was found demonstrating that reproductive material removed after death could be construed as property at the time of death, subsection 8(2) of the federal Assisted Human Reproduction Act[9] does seem to contemplate the legal extraction of reproductive material after death (provided that the deceased has consented to such extraction).

Another exception to the rule is that some Canadian statutes allow people to consent to organ or body donation. While such legislation typically does not permit one to gift these things through their will, it does represent the allowance of a person to have some control over their remains after death. In Ontario, the Trillium Gift of Life Network Act (“TGLNA”) allows an individual to, prior to their death, consent to organ and/or body donation “for therapeutic purposes, medical education or scientific research”; such consent is legally binding.^[10]

A final exception is the “work and skill” exception from the Australian case Doodeward v Spence, which Canadian courts have subsequently cited.[11] This exception applies to a body part that, through such “work and skill”, had “acquired some attributes differentiating it from a mere corpse awaiting burial.”[12] A relevant application of this exception is another Australian case, Leeburn v Derndorfer, where a dispute over the ashes of a testator led to the finding that until scattering, the ashes were property capable of being owned and possessed, as the process of setting fire to human remains fell transformed the body, falling into the “work and skill” exception.[13] That being said, note that Doodeward and the exception that it creates has received a mixed reception across Canadian jurisdictions (and has not yet been cited by an Ontario or Canadian federal court).[14]

To summarize, the legal exceptions to the “no property in a body or human remains” rule include assisted reproduction, body/organ donation for therapeutic purposes,[15] medical education or scientific research, and possibly the “work and skill” exception. There does not appear to be a specific exception for the preservation of tattoos for display purposes, although one might be able to argue that such a purpose falls under one of the TGLNA categories (perhaps “medical education”) or the “work and skill” exception.

Is an agreement between an individual and a third party to transfer or gift their preserved skin upon their death enforceable?

A related question separate from (but dependent on) whether skin can be considered property is whether the testator can effect a transfer of such skin by way of an agreement with a third party.

A general principle is that the estate trustee must honour the pre-existing agreements of the deceased. In Newlands Estate, a court found that an oral contract between a testator and one of his children to give them a painting was binding on an estate trustee:

An estate trustee is bound by the same contracts that the deceased was bound by during his/her lifetime […] “it is the duty of a legal personal representative to perform all contracts of his testator or intestate, as the case may be, that can be enforced against him or her, whether by way of specific performance or otherwise”[16]

However, notwithstanding whether or not skin could be considered property, see subsection 10(1) of the TGLNA:

Sale, etc., of tissue prohibited

No person shall buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any tissue for a transplant, or any body or part or parts thereof, for therapeutic purposes, medical education or scientific research, and any such dealing is invalid as being contrary to public policy.

This presents some uncertainty. First, would selling skin to, for example, a museum for display purposes, fall under one of the TGLNA categories (i.e. “therapeutic purposes, medical education or scientific research”)? Such purposed might be considered to fall under “medical education”, but absent any judicial commentary, it is unclear. Note that a donation of skin for purposes outside of the TGLNA categories would definitely not be permitted, as described in subsection 4(1) of the TGLNA.

Second, the wording of the statute implies that if such skin is sold for a purpose that does not fall under one of the TGLNA categories, then such a sale is permissible (i.e. a sale to a private person for non-therapeutic, non-medical and non-scientific purposes). Was that the legislative intent? Am I legally allowed to sell one of my fingers through something like Kijiji or Facebook Marketplace if the sale isn’t for a purpose that falls under the TGLNA categories?

Again, there is little case law on the TGLNA, so there does not yet seem to be a clear resolution of these issues. Therefore, it remains to be seen whether a court would set aside an agreement that a person made during their life with a third party to either sell or donate their skin for the specific purpose of displaying tattoos portrayed on such skin.

Can a person direct for their tattoos to be preserved as part of their funeral and burial instructions?

Assuming that skin cannot be considered property, and thus cannot be subject to most private agreements, one might think that there may be other legal means to direct the preservation of such skin. Primarily, such means could include funeral and burial instructions.

While certain jurisdictions, like Quebec, have legislation permitting a testator to direct legally-binding wishes regarding their remains,[17] no such legislation exists in Ontario. Per the common law (and applicable to Ontario), if there is a valid will, the estate trustee has an obligation to dispose of the deceased’s body, including both a possessory interest in the body and the ultimate control over the funeral and burial arrangements and disposal of the body, as applicable.[18]

The estate trustee’s power is paramount in this regard. It supersedes any family wishes or religious interests.[19] Most notably, any wishes from the testator regarding the disposal of their remains are not binding on the estate trustee.[20] Under common law, the estate trustee only has the obligation to dispose of the deceased’s body in a “dignified fashion”, which includes the judicially-approved methods of cremation and burial, but in some cases has been held to include alternative means of disposal (i.e. freeze drying, composting).[21] Further, subsection 182(b) of the Criminal Code of Canada makes it an indictable offence if someone “improperly or indecently interferes with or offers any indignity to a dead body or human remains, whether buried or not”.[22]

Make no mistake, though: a testator can still choose to leave burial wishes, and while such wishes are not legally binding, the estate trustee can still choose to respect and carry them out; in fact, despite the above, some case law has even suggested that the wishes of the testator should be respected as much as possible.[23]

Conclusion

Research into this topic can produce a multitude of other questions, including: how would we determine the fair market value of the preserved skin bearing the tattoos for estate and taxation purposes? Could it be appraised like artwork? Could one get a charitable tax credit for it if it is donated to a charitable organization?

While the law doesn’t appear to explicitly disallow for the preservation of skin in this manner, it also does not explicitly allow a person to legally ensure that their tattoos can be preserved for display, either. Certainly there are measures one can take to make this the likely result, but issues may arise if a family member disputes such preservation. In this regard, it is usually advisable that if an individual has wishes to preserve their tattoos, they should communicate such wishes both in their will and to their estate trustee directly. Furthermore, while embedding tattoo preservation wishes in one’s will itself may not offer any legally-binding power to compel the estate trustee to have the tattoos preserved, it may protect the estate trustee should they choose to honour the wishes but face opposition from a family member.[24]

Thank you for reading! I would like to thank Hilary Laidlaw, partner at McCarthy Tetrault, for the idea for this blog, and Krysten Zator, Student-at-Law at Fasken, for helping me research for and write this post.

[1] Demetre Vasilounis, “Estate Planning for Tattoo Artists” (7 August 2020), online (blog): All About Estates <www.allaboutestates.ca/estate-planning-tattoo-artists>.

[2]  Jessica Murphy, “Preserving a loved one’s tattoos after death”, BBC News Toronto (3 May 2019), online: <bbc.com/news/world-us-canada-48047002#:~:text=At%20the%20request%20of%20the,process%20takes%20
about%20three%20months>.

[3] Save My Ink Forever, “Home” (2019), online: Save My Ink Forever <savemyink.tattoo>.

[4] For example, a foundation in Amsterdam, Netherlands accepts donations of tattoos. See: Martha Bebinger, “Extra-Permanent Ink: Preserving Your Tattoos After Death”, npr (11 October 2014), online: <www.npr.org/2014/10/11/355192276/extra-permanent-ink-preserving-your-tattoos-after-death>.

[5] Succession Law Reform Act, RSO 1990, c S.26 [SLRA].

[6] See Louise M Mimnagh, “The Disposition of Human Remains and Organ Donation: Increasing Testamentary Freedom while Upholding the No Property Rule” (2017) 7:1 Western Journal of Legal Studies 1 [Mimnagh] and Jason Ward, “Resolving Grave Disputes” (2018), online (pdf): CanLii Docs <www.canlii.org/en/commentary/doc/2018CanLIIDocs157> [Ward]  for a review of the history of the “no property in a body” rule. This rule is rooted in English common law, notably in the case Williams v Williams, [1882] 20 ChD 659 (UK) [Williams]. The rule has been repeated in Ontario case law; see, for example: Hunter v Hunter (1930), 65 OLR 586, 4 DLR 255 (Ont SC) [Hunter].

[7] CC v AW, 2005 ABQB 290 [CC]; JCM v ANA, 2012 BCSC 584 [JCM]. Only one case involving a dispute over frozen reproductive material could be found in Ontario. The Court of Appeal did not treat the dispute as a property law issue, considering only whether one of two spouses could withdraw consent under an interpretation of the relevant legislation – the Assisted Reproduction Act, SC 2004, c 2 – such that the other would be prevented from using the frozen embryo to conceive a child; see SH v DH, 2019 ONCA 454 at paras 4, 16, 26-29, 68 [SH v DH].

[8] See Mimnagh, supra note 6, generally; see JCM, supra note 7 at para 58, where Justice Russell in citing Yearworth & Ors v North Bristol NHS Trust, [2009] EWCA Civ 37 (Eng & Wales CA (Civil)) [Yearworth] stated, “As is acknowledged in that case, typically the common law did not allow for human beings, living or deceased, or their body parts and products to be considered property. This was, no doubt, for good reason. However, I agree with the court of appeal’s finding that medical science has advanced to a point where the common law requires rethinking of this point”.

[9] Assisted Human Reproduction Act, SC 2004, c 2. See also the associated regulation: Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations, SOR/2007-137 at ss 6-8.

[10] RSO 1990, c H 20, ss 4(1), 4(3) [TGLNA]. The relevant provision of the TGLNA specifies that one can donate their “body or the part or parts thereof” and has not been litigated.

[11] Doodeward v Spence, (1908), 6 CLR 406 at 414 (HCA) [Doodeward]. For example, this was referred to in JCM, supra note 7 at para 25. In this case a doctor preserved a two-headed still-born baby.

[12] Ibid.

[13]  Leeburn v Derndorfer (2004), 14 VR 100 at 102 (VSC).

[14] JCM, supra note 7 at para 28.

[15] It is unclear which specific activities qualify as “therapeutic purposes”, as neither the TGLNA nor jurisprudence have defined this phrase.

[16] Newlands Estate, 2017 ONSC 7111 at para 85.

[17] See Mimnagh, supra note 6 at 11-12: Article 42 of the Quebec Civil Code provides for a legally-binding obligation on an executor to respect the wishes of the testator regarding the disposition of their remains by will. However, when tested in court, no sanctions resulted from a breach of the article, calling into question if wishes will be respected in practice.

[18] For a thorough review of the power of the estate trustee regarding the body of the deceased, see Ward, supra note 6 at 7-10; Mimnagh, supra note 6. See for example in case law: Hunter, supra note 6, as cited in Mimnagh, supra note 6 at 10; Miller v Miller, 2018 ONSC 6625 at paras 3 and 4. See also Mason v Mason et al, 2018 NBCA 20 at para 32 for a summary of applicable law.

[19] Lajhner v Banoub, 2009 CarswellOnt 1745, 4 ETR (3d) 87 (ONSC) at para 29 [Lahjner], as cited in Ward, supra note 6 at 22; Hunter, supra note 6, as discussed in Mimnagh, supra note 6 at 9 to 10; Abeziz v Harris Estate, [1992] OJ No 1271, 1992 CarswellOnt 3803 (Ont Gen Div) [Abeziz], as discussed in Mimnagh, supra note 6 at 10 to 11.

[20] See for example Abeziz, supra note 19, as discussed in Mimnagh, supra note 8 at 10 to 11; Bedont Estate, Re, [2004] OJ No 4267, 2004 CarswellOnt 2107 at para 26 [Bedont Estate]; Lahjner, supra note 19 at para 20, as cited in Ward, supra note 6 at 22.

[21] See Abeziz, supra note 19 at para 28; Saleh v Reichert, 1993 CanLII 9394 (ONSC), (1993) CarswellOnt 567, (1993) 50 ETR 143, 104 DLR (4th) 384 at para 8 (Ont Gen Div) [Saleh] as cited in Ward, supra note 6 at 7; see Ward, supra note 6 at 69 to 72 for a discussion of alternative disposal methods.

[22] Criminal Code, RSC 1985, c C-46, c 35 at ss 182(b) [Criminal Code].

[23] See for example: Abeziz, supra note 19 at paras 23, 28 as cited in Mimnagh, supra note 6 at 10 to 11; Heafey v McRae, 5 ETR (3d) 121, 1999 CarswellOnt 5263 (Ont SCJ) at para 15 [Heafey]: the court stated that “[a]s much as possible, the wishes of [the deceased] should be respected and honoured in death.”

[24] See Ward, supra note 6 at 23.