Cremation, incineration and the foetus

Channel 4 broadcast its Dispatches programme, Amanda Holden: Exposing Hospital Heartache, on 24 March 2014:

“Actress and presenter Amanda Holden has suffered both a stillbirth and a miscarriage but was helped through the trauma by caring treatment from compassionate professionals, as are many parents. But, in this Channel 4 Dispatches, Holden investigates the treatment of some couples whose pregnancies end in failure.

She meets a number of mothers who tell her their experiences in the aftermath of their loss left a great deal to be desired, and seeks answers from those in authority in the NHS about the problems she hears. Along the way, she revisits her own difficult memories to try to understand what these parents are going through.”

Part of the programme concerned the insensitive approach of some hospitals on their treatment of the parents and their use of hospital incinerators rather than crematoria in the cases of stillbirths, miscarriages and abortions. This was reflected in comments made by bloggers and the media, whose headlines included: Burning Babies, Peter Ould; What’s wrong with using aborted foetuses for central heating?, Archbishop Cranmer; Aborted babies are being used to heat UK hospitals. This is the culture of death, Tim Stanley, (Daily Telegraph); Remains of unborn children incinerated to heat hospitals, Madeleine Teahan (Catholic Herald); Let’s Kill Babies and Put Them To Good Use, Bill Muehlenberg, (CultureWatch).

All commentators decried the use of hospital incinerators, a sentiment that we fully support in this blog. However, whilst their observations relating to the use of an incinerator as a means of disposing of foetal remains are valid, linking this to providing the heating for hospitals is, at best, tenuous. The programme in fact stated [1] that Addenbrooke’s hospital is heated by the combustion of clinical waste which includes the remains of miscarried babies, which is not quite the same.

Where hospitals’ “energy from waste” incinerators are used to supplement their heating, this relates to the recovery of waste heat from the incineration process, not to that released on burning human remains as a fuel, as suggested by many of the headlines – a supposition that is supported neither by the thermodynamics of the process (since incineration/cremation requires an input of energy) nor by the logistics.(in terms of the 797 foetal remains incinerated at Addenbrooke’s Hospital, the total would amount to a very small percentage of other material treated in its incinerator [2]). It is therefore unlikely to make any significant contribution, positive or negative, to the heating of the hospital.

Earlier posts have noted that prior to 24 weeks gestation, foetal remains do not have legal personality, here and here, the corollary of which is that they are not subject to the provisions relating to cremation, i.e.the Cremation Act 1902 or Cremation (England and Wales) Regulations 2008 SI 2841 [3], but fall within those relating to incineration [4]. Furthermore, there is no statutory requirement to register the death of a non-viable foetus, although the Regulation contains specific provisions for the cremation of stillborn babies, which under common law must be buried or cremated [5].  Guidance for practitioners is available which indicates the options available to hospitals and the operators of cemeteries and crematoria [6].

Comment

The purpose of this post is to examine the dilemmas facing parents and hospital staff in the sensitive treatment of pregnancy loss before 24 weeks gestation; it is not to discuss the legal and ethical issues associated with abortion, nor to explore those surrounding the legal personality of the foetus. However, these dilemmas have been overshadowed in some of the recent media coverage which has focussed on the fuelling of heating systems with dead babies; not a new concern, having been reported by the London Evening Standard in 2006, and one that does not stand close scrutiny.

Nevertheless, this has prompted expressions of concern and promises of action from Prof Sir Bruce Keogh, Medical Director of NHS in England; Dr Dan Poulter, Health Minister; and Professor Sir Mike Richards, Chief Inspector of Hospitals, Care Quality Commission.  A spokesperson from Sands, the stillbirth and neonatal death charity, is quoted as saying the practice of incinerating pre-24 week foetuses is unacceptable and that whenever possible, cremation should be used instead.

The requirement for a sensitive approach is quite explicit in the guidance currently available, but one that is not assisted by the associated legislation or by the practical issues involved.  Operators of crematoria are not obliged to provide a service to dispose of foetal tissue, and do so at their discretion.  Likewise, not all cemetery operators offer the option for burial, and although shared or communal cremation/burial is permitted, this is not always available or appropriate for those concerned.

Whilst hospitals and crematoria are faced with logistical issues of treatment, the options available to women and couples are not straightforward as indicated in guidance from the Human Tissue Authority:  “some … may not wish to know about the disposal of the foetal tissue”; “the cremation of foetal tissue does not often produce any ashes … to scatter”; and, their requirements may vary according to “the values and beliefs of a wide range of cultures and religions”.  Aside from these practicalities, there are also the requirements for support, such as that provided by the stillbirth and neonatal charity Sands, hospital chaplains, and others.

The Channel 4 programme has raised awareness of issue, and there will no doubt be further debate and consideration in Parliament, the NHS and by the operators of crematoria.


[1] at ~27 minutes from the start.

[2] NHS data indicate that at 13 weeks, a baby weighs around 25g. Department of Health statistics for 2011 show that 91% of abortions were carried out at under 13 weeks gestation

[3] The latter contains specific requirements relating to “body parts” which “means material which consists of, or includes, human cells from a deceased person, whether or not separation from the body occurred before or after death; or a stillborn child, defined in paragraph 2(1) as “apply to any child born after the twenty-fourth week of pregnancy and which did not at any time after birth, breathe or show any other signs of life”.

[4] D N Pocklington, The Law of Waste Management, (2nd Edn, Sweet & Maxwell, 2011), 567-9.

[5] HTA Code of Practice 5, paras 118 and 119, [reference [6]].

[6] Including: Code of Practice 5: Disposal of Human Tissue, Disposal following pregnancy loss, (Human Tissue Authority, July 2014); Managing the disposal for of pregnancy remains, (Royal College of Nursing, 19 December 2018); and The Sensitive Disposal of Fetal Remains: Policy and Guidance for Burial and Cremation Authorities and Companies, (Institute of Cemetery & Crematorium Management, September 2015).

Guidance of the HTA has statutory authority, having been approved by Parliament in July 2009 and brought into force via Directions 002/2017.  The other Codes of Practice referred to do not.

[Links updated 23 September 2019].


Cite this article as: David Pocklington, "Cremation, incineration and the foetus" in Law & Religion UK, 27 March 2014, https://lawandreligionuk.com/2014/03/27/cremation-incineration-and-the-foetus/

4 thoughts on “Cremation, incineration and the foetus

  1. Pingback: Cremation, incineration and the foetus: the Mortonhall Report | Law & Religion UK

  2. Pingback: Anatomical teaching & research and the law | Law & Religion UK

  3. Pingback: Infant cremation: Scotland and England | Law & Religion UK

  4. Pingback: More answers to readers’ comments and queries – August and September | Law & Religion UK

Leave a Reply

Your email address will not be published.