The Austrian Supreme Court had to deal with a rather rare dispute recently over the balance between an individual's personality right and medical research interests (OGH 8 Ob 56/17v, 23 March 2018).

The dispute arose when a husband demanded the handover of his dead wife's brain from an Austrian university. Due to suspected Creutzfeldt-Jakob Disease ("CJD"), an autopsy had taken place confirming the infection. The forensic doctors at the respective university then extracted her brain for scientific and preventative reasons according to the following rules. 

In Austria CJD is legally classified as a notifiable, communicable disease under Section 1 para 1 no 1 of the Austrian Law on Epidemics.  Moreover, under the authority of the Austrian Ministry of Health a reference center for prion diseases has been established since 1990/91 in which brains of persons who died as a result of CJD are preserved for 30 years and scientifically studied.

In this case, as the husband was the sole heir, he based his surrender claim on the exercise of his wife's lasting personality rights. The university, however, argued that it had the right to preserve the human organ to serve public interest and in accordance with the Austrian Law on Epidemics as well as on the Ministry's order.

The woman herself had never decided what should happen to her body after her death. With respect to organs, an opt-out system applies to organ donation in Austria. However, this case could not be classified as a donation.

The findings of the instances

The court of first instance decided in favour of the Claimant due to his wife's missing consent and his present right to exercise her lasting personality rights.

Following and affirming the first court's decision, the second court nevertheless agreed to a revision by the Austrian Supreme Court due to the lack of jurisprudence on the extent to which a university's right to follow a research assignment exists.

The "final" judgment of the Supreme Court

In its revision presented to the Supreme Court the Defendant, the university, claimed for the first time that the legal proceedings in front of the national courts were inadmissible as the autopsy as well as the government order on the preservation of the brain are state administration issues. Thus, the administrative courts are competent.

The Supreme Court came to the conclusion that the university in fact did act as a contractual agent for the reference centre for prion diseases in the healthcare sector, and hence, for the state administration. However, the court also found that the Claimant may file a request for burial by which he would have a legal remedy for claiming the termination of the autopsy and preservation in administrative proceedings.

In line with the above, the Supreme Court found the former proceedings in front of the national courts to be null and finally dismissed the original claim.