Our earlier post Cremation, incineration and the foetus considered the legal issues arising from the Channel 4 Dispatches programme in which Amanda Holden investigated the treatment of couples whose pregnancies end in failure. Part of the programme concerned the insensitive approach of some hospitals in their dealings with the parents, and highlighted the use of hospital incinerators rather than crematoria for stillbirths, miscarriages and abortions.
A related issue arose during the preparation of a book for the charity SANDS Lothians, and this too concerned the experiences of parents who had suffered the loss of their babies through miscarriage, stillbirth or neonatal death. Lesley Winton, the freelance writer engaged to undertake the work, discovered that whereas the privately run Seafield and Warriston Crematoria provided parents with the ashes of their babies following cremation, this was not the case for those whose babies were cremated at the local authority Crematorium, Mortonhall. Edinburgh City Council commissioned an independent investigation into the practices at Mortonhall in January 2013, and the resulting report was published on 30 April.
A BBC Scotland documentary on the Mortonhall situation, broadcast on 3 April 2013, identified apparent inconsistencies in practices in crematoria across Scotland, and internal audits were commissioned by Glasgow and Aberdeen City Councils. These were reported on 16 May and 15 July, respectively, and the matter was subsequently debated in the Scottish Parliament. As a result, the Scottish Government established a Commission chaired by Lord Bonomy  with the remit of to: review current policies, guidance, practice and legislation in Scotland in relation to the handling of all recoverable remains (ashes) following the cremation of babies and infants; and to make recommendations for improvement and change.
The Mortonhall Report stresses [page 13]:
“[it] had no statutory authority and was carried out solely on the basis of the willingness and co-operation of parents, staff and former staff at Mortonhall, the relevant authorities, members of professional organisations, NHS staff, Funeral Directors and the Scottish Government to provide evidence and support to the process. Such co-operation was provided by all.”
Nevertheless, the Investigation was headed by former Lord Advocate of Scotland, the Rt Hon Dame Elish Angiolini QC DBE, and as such was undertaken with significant attention to legal, technical and operational detail. Although not a component of the work of Lord Bonomy’s Commission, there was on-going liaison between the two groups to avoid unnecessary duplication and material relevant to their respective remit was shared.
Edinburgh City Council stated that the Report’s 22 recommendations would be taken forward by the Council and other relevant agencies.
The Mortonhall Investigation Report
The 600+ page Report comprises a background summary, six sections and ten annexes, and these are individually downloadable from the links here. The practical (i.e. operational) and legal issues are included in section 2, and section 3 addresses Government policy, the guidance provided by the Health Board and industry professionals, and the training of crematorium staff. The conclusions and recommendations in section 6 extend to 37 pages, and although primarily addressed to the Edinburgh City Council, have much wider application. At the time of writing, however, the Report did not attract media attention south of Hadrian’s Wall.
To many, the major aspect of the Report will be the quantification of the initial findings of Lesley Winton: that contrary to conventional wisdom, it is possible to collect the ashes of cremated foetuses, i.e. [our emphasis]
“There is clear evidence of different, ad hoc, modifications of working practices that permit the consistent recovery of remains following cremation of foetuses as young as 17 weeks gestation in adult cremators. There are also other examples of specially designed foetal or infant cremators that allow the successful recovery of cremated remains,” [page 524].
The Report notes “whether by use of a foetal cremator or modified practices in an adult cremator, or a combination of both, there is a need for detailed, authoritative professional guidance on how best to maximise the recovery of ashes from the cremation of babies”, and recommends, [our emphasis]
“that the Scottish Government should commission research to identify best practice in achieving remains in the cremation of foetuses, stillborn babies and neonatal babies. This research should also examine the most effective equipment. Dr Chamberlain suggests a new methodology could be readily developed that may be more cost effective for some crematoria.
Unless a crematorium can demonstrate their competence in achieving remains and show consistent evidence of the sensitive treatment of next of kin in such cases it is recommended they should not be permitted to continue the cremation of these babies.
Until such time, it may be that centres of excellence in this most difficult and sensitive final act of care should be identified to parents and the funding for such cremations withdrawn from those crematoria that do not provide an adequate service to next of kin,” [page 526]
We would add that such research should be endorsed by the UK government, and also note that the aspect of cost is not addressed other than in relation to the funding which is, or is not, made available. The Report’s major criticism was focussed on the management of the Mortonhall crematorium, which is beyond the scope of this blog, other than to note that while considered by the senior managers and the Council as a model of excellence in the context of the wider range of Council activities, the reality was very different so far as it related to the cremation of foetuses, stillborn and neonatal babies.
It also criticized the industry, stating
“There has been little development attention paid by the industry to how full-size cremators operate with infant cremations and, if there are to be consistent successful infant cremations, (i.e. with recoverable remains), changes are necessary”, [page 525],
and the law itself has created problems,
“The legal framework governing the cremation of foetuses and infants in Scotland is peppered with gaps, ambiguity and uncertainty. The effect of a number of provisions in law were and continue to be unknown or uncertain to those professionals providing a service to the next of kin whose babies are to be cremated at Mortonhall Crematorium”, [page 527].
In an earlier post we indicated the sometimes conflicting legal, medical and religious issues relating to a foetus from conception to birth. Issues specific to Scotland include: the governance of cremation under the Cremation (Scotland) Regulations 1935, as amended, rather than the Cremation (England and Wales) Regulations 2008 SI 2841 for which the Report highlights certain differences; and the inapplicability of much of the relevant Human Tissue Authority Code of Practice on the disposal of foetal tissue.
To add to the confusion, there is no statutory definition of the term “ashes”, and the two professional bodies concerned FBCA (Federation of Burial and Cremation Authorities) and the ICCM (Institute of Cemetery and Crematorium Management) have quite different views.
A further legislative issue concerned the conditions under which the Mortonhall cremated foetal remains, which were incompatible with their permit to operate under environmental legislation. However, in other crematoria operating under an “infant setting” these necessary criteria were met.
There are clearly lessons to be learned by all those associated with the design and operation of crematoria, and the findings of Lord Bonomy’s Commission will be followed with interest. Given the currently accepted belief that ashes cannot be recovered from the cremation of babies of less than 24 months, a survey of the practice in England and Wales would seem timely.
The Good Funeral Guide Blog has reviewed the Report in its post The many lessons to be learned from Mortonhall
 Stillbirth and Neonatal Death Society, Lothians
 The Scottish Government reports that in 2012 there were 27 crematoria in Scotland: 14 owned and run by local authorities; 12 privately owned and run as businesses; and one which is jointly run.
 The Infant Cremation Commission.
 “114. Women or couples should be told that the cremation of fetal tissue does not often produce any ashes for them to scatter”, Human Tissue Authority, Code of practice 5, Disposal of human tissue; “Even today, cremation of a foetus younger than 24 weeks does not yield any remains”, Good Funeral Guide, (The Good Funeral Guide is wholly independent of the funeral industry and is dedicated to supporting, empowering and representing the interests of dying and bereaved people living in the UK); “If you choose cremation you should be informed that there might not be any ashes resulting from the cremation (whether this be a shared or private cremation)”, The Sensitive Disposal of Fetal Remains: Policy and Guidance for Burial and Cremation Authorities and Companies, Institute of Cemetery & Crematorium Management, August 2011.
 At 17 weeks gestation, NHS data suggest that the average weight of a baby is around 150g. Department of Health statistics for 2011 show that 91% of abortions were carried out at under 13 weeks gestation at which the baby weighs around 25g.
 “an absence of any evidence of proactive and challenging leadership or meaningful supervision of the crematorium from any level of senior management over many years allowed the impression to form for these managers and others of a very well-run crematorium under the experienced and expert management of the Bereavement Services Manager”, [page 523].
 Differences include: the stipulation in SI 2008/2841 that the ashes must be given to the person who applied for the cremation ‘or a person nominated for that purpose by the applicant; and the definition of “body parts” as meaning “material which consists of, or includes, human cells from … (b) a stillborn child”, which is not within the amended Scottish provisions.
 The FBCA consider that ashes consist of cremulated bone to the exclusion of any other source of ash obtained from the burned coffin, clothing or soft toys cremated along with the baby, whereas the ICCM (Institute of Cemetery and Crematorium Management) considers ashes to include all ashes from the cremation.
 i.e. unmanned operation during the night with no emission monitoring and a secondary combustion chamber temperature of less than the 800 to 850 deg. C required to prevent dioxin formation.