This case has attracted a lot of Press attention, and as ever, not all of it is terribly accurate reporting. Most of the headlines have been along the theme of “girl wins right to be frozen after death”
If you haven’t heard yet, this is a High Court case where a decision was taken about a girl who had terminal cancer and who wanted to be cryogenically frozen after her death so that if there was a chance in the future of her being cured that this could happen. And the conclusion of the Court was that steps could be taken after her death to comply with her wishes.
As this is a Justice Peter Jackson judgment, it is very clear and readable, and tells you lots of things that you didn’t previously know. So well worth a read. Justice Peter Jackson is on the sort of roll that the Beatles were on between Rubber Soul and Sergeant Pepper, his entire output is extraordinary in its quality.
Re JS (Disposal of Body) 2016
http://www.bailii.org/ew/cases/EWHC/Fam/2016/2859.html
I think I’ll start with the very simple steer he gave to the Press which they ignored
25.The first thing to note is that much of the current problem arises from the fact that JS is a child, albeit a legally competent one. If she was 18, she would be able to make a will, appointing her mother as her executor, and it would then be for the mother to make arrangements for the disposal of JS’s body, no doubt in accordance with her wishes. However, children cannot make wills. My approach is therefore to try to remove the disadvantage that JS is under as result of her age. I do not intend to go further than that, as JS cannot be in a better legal position than she would be if she was an adult.
26.Next, it is important to approach a problem of this kind on the basis of a real situation as opposed to theoretical possibilities. When the application first came before the court, it was not clear that JS’s wishes could be carried out, because there was no information from the hospital or from the US authorities. Now that this and other information has been gathered, there is a practical plan that can be considered.
27.Thirdly, the court is not making orders against third parties. The position of the various organisations and authorities has been set out above. All the court is doing is to provide a means of resolving the dispute between the parents.
28.Fourthly, this case does not set a precedent for other cases. If another health trust was ever to be faced with a similar situation, it would be entitled to make its own judgment about what was acceptable in respect of a patient in its care, and it might very well reach a different conclusion, as might another court. There are clearly a number of serious ethical issues, and I have received information about procedures performed on the body after death that would be disturbing to many people.
29.Fifthly, I am acutely aware that this case gives rise to a large number of issues that cannot be investigated in the course of a hearing of this kind. If regulation is required, there would need to be consultation with a wide range of interested parties. That is a matter for others. This court is faced with a situation that needs immediate determination on the basis of the best available information. For the future, I shall direct that the papers in this case shall be released to the HTA on the basis that the identity of the family and the hospital trust will remain confidential.
30.Lastly, I cannot emphasise enough what this case is not about. It is not about whether cryonic preservation has any scientific basis or whether it is right or wrong. The court is not approving or encouraging cryonics, still less ordering that JS’s body should be cryonically preserved.
31.Nor is this case about whether JS’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.
32.All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.
It is also important to know that whilst JS was a pivotal part of the case and the way it was resolved, the actual legal structure here is a dispute between her parents. When I was hearing the case reported on the radio and TV this morning, without having read the judgment, it made no sense to talk of the child winning this ‘right’ because of course someone has to pay for the cryogenic freezing. This was a dispute between the mother who was supporting JS’s wishes, and the father who was not.
The Court was therefore resolving which of the parents’ views should prevail. {The father’s position was quite nuanced and it is overly simplistic to just say that he was against it – after a lot of thinking, the dispute really came down to a desire to see his daughter’s body after she died, which doesn’t sound that unreasonable – but in the context of their relationship having completely broken down, it is understandable that the case couldn’t quite come to a settlement by agreement, which is a shame}
6.Over recent months, JS has used the internet to investigate cryonics: the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.
7.The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications. On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. Cryonics is cryopreservation taken to its extreme.
8.Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds. There are apparently two commercial organisations in the United States and one in Russia. The costs are high, or very high, depending on the level of research into the subject’s case that is promised. The most basic arrangement (which has been chosen here) simply involves the freezing of the body in perpetuity. Even that will cost in the region of £37,000, according to the evidence in this case – about ten times as much as an average funeral. Although JS’s family is not well-off, her maternal grandparents have raised the necessary funds.
9.There is no doubt that JS has the capacity to bring this application. She is described by her experienced solicitor as a bright, intelligent young person who is able to articulate strongly held views on her current situation. Her social worker says that she has pursued her investigations with determination, even though a number of people have tried to dissuade her, and that she has not been coerced or steered by her family or anyone else.
10.JS has written this: “I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”
The Court had to look first at whether cryogenic freezing was actually legal in the UK, and as the storage would be in America, whether there were legal problems with shipping a frozen person to America.
16.I have also been taken to the old authorities on the unlawful treatment of dead bodies (see Archbold 2017 at 31.54 onwards) but it does not appear that an offence would be committed in this case; in other words, what JS wants does not seem to be illegal.
17.Enquiries have now been made of the United States authorities, who have confirmed that there is no prohibition on human remains being shipped to the US for cryonic preservation provided that the UK funeral director and the US commercial organisation are in communication to guarantee that local, state and federal requirements are complied with.
Having been quite interested in cryogenics in my younger days, I’m aware that there are considerable schools of thought that the process works better if the person undergoes the procedure whilst they are still alive, but I think that’s going to be a step too far for the Family Courts.
23.It is no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law. Faced with such a tragic combination of childhood illness and family conflict, the court must remember that hard cases make bad law, and that natural sympathy does not alter the need for the application to be decided in accordance with established principle, or with principle correctly established.
I’m disappointed that nobody took the Judge to a comparable, if opposite case from India in 2014, which is about whether a man who has been in a freezer for several years is in fact dead or whether he is instead in ‘deep meditation’ – because his family want his remains released so they can cremate them, but the followers of this guru say he is still alive. The fact that if he is alive, the followers retain control of his $170 million fortune plays no part in that, of course.
According to one of his aides, who asked not to be named, “Maharaj has been in deep meditation. He has spent many years meditating in sub-zero temperatures in the Himalayas, there is nothing unusual in it. He will return to life as soon as he feels [ready] and we will ensure his body is preserved until then,” he said.
Sorry, sidetracked. I’m fairly sure there has been a case this century in English law involving parents who were in dispute as to whether their son’s remains should be kept in the UK or taken to the River Ganges to be scattered, but I can’t find it. I have a strong recollection of it. Maybe it will emerge and I can add it in. No luck so far, though there’s this sticky piece of litigation where a man took Newcastle to Court for refusing to allow open air funeral pyres http://www.bailii.org/ew/cases/EWHC/Admin/2009/978.html
It turns out that a person cannot control what happens to their body after their death – because a dead body is not property, so you can’t state in a will what is to happen to it. Williams v Williams 1882. The wishes of the deceased may be relevant, but they don’t bind third parties. So if you, like me, were thinking of putting in your will that you want your ashes blown into Bono’s eyes after your death, your Executors can just smile wryly and stick your ashes in a cookie jar with a picture of Ian Rush on it, despite this being wholly against your wishes. It will be your Executors who make the arrangements for your burial/cremation/cryogenic/being shot into space like Ken Kesey. Now, an adult can make a will and appoint someone they trust as Executor, and if JS was 18, that’s what she would have done, made a will and appointed her mother as Executor, leaving clear instructions. But as established earlier, a child can’t make a will (not even if they are Richie Rich or Mustafa Millions out of Cheeky), so that option was not available.
Thus, the mechanism here is that a person, such as a minor, who dies without a will, is that someone will apply for Letter of Administration, which then lets that person make decisions, including about arrangements for the body.
What the Judge did here (simplifying it as much as possible) is to make a Specific Issue Order that in relation to the dispute between the mother and father as to arrangements for JS that the mother can carry out her proposal, and that she is to have the Letters of Administration and that the father cannot apply for them, so that in effect means that JS’s wishes will happen.
There’s a rather sad and shabby postscript to the whole affair.
Postscript
65.On 7 October, the day after the hearing, I received a message from JS through her solicitor saying that she would like to meet the judge who had decided her case. I visited her in hospital that evening in the presence of her mother and we had a good discussion. I was moved by the valiant way in which she was facing her predicament.
66.On 17 October, JS died.
Part 3 – 10 November 2016
67.On 8 November, I received a detailed note from the solicitors for the hospital trust in which the events surrounding JS’s death are described from the point of view of the hospital. It records that JS died peacefully in the knowledge that her body would be preserved in the way she wished.
68.However, the note makes unhappy reading in other ways. The Trust expresses very real misgivings about what occurred on the day of JS’s death. In brief and understated summary:
(1) On JS’s last day, her mother is said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to JS.
(2) The voluntary organisation is said to have been under-equipped and disorganised, resulting in pressure being placed on the hospital to allow procedures that had not been agreed. Although the preparation of JS’s body for cryogenic preservation was completed, the way in which the process was handled caused real concern to the medical and mortuary staff.
69.These proceedings have come to an end and I make no findings about the above matters, on which I have in any event not heard other views. I nonetheless approve the intention of the Trust to send a copy of the note and its accompanying documents to the Human Tissue Authority. It may be thought that the events in this case suggest the need for proper regulation of cryonic preservation in this country if it is to happen in future.
suesspiciousminds 