Our recent post Burial law reform in Scotland noted that the current Scottish government consultation on burial and cremation includes a legal definition of “ashes” within the proposed Bill:

“31. There is no clear definition of ‘ashes’ in current legislation. In practice various different remains may be considered as ashes after a cremation, and in the past this has led to misunderstanding and confusion. The Infant Cremation Commission [ICC] recommended that ‘ashes’ should be defined in legislation as:

‘all that is left in the cremator at the end of the cremation process and following the removal of any metal’.

This will provide a single definition which will ensure that any remains left after all cremations will be regarded as ashes.

Q10 – Do you agree with this definition of ashes? If not, how should ashes be defined?”

For the reasons outlined below, we believe that the proposed definition would not fully address the ICC’s objectives, and raises important issues on the treatment of the remains of foetuses of less than 24 weeks gestation.

Current perceptions of the meaning of “ashes”

The Mortonhall report identified a fundamental difference of opinion between the two leading professional organisations in the UK involved in the process of cremation, [page 34]: the FBCA (Federation of Burial and Cremation Authorities) considers that “ashes” consist of cremulated [i.e. ground] bone to the exclusion of any other source of ash obtained from the burned coffin, clothing or soft toys cremated along with the baby; by contrast, the ICCM (Institute of Cemetery and Crematorium Management) considers ashes to include all ashes from the cremation, both cremulated bone as well as ash from items which were mementos or part of the fabric of the baby’s last resting place.

This was taken up in the ICC/Bonomy report, [emphasis added]:

“7.18 In view of the use of different language in the various Guidance documents referred to above, the Commission thought it best to seek assistance in resolving the uncertainty by obtaining the opinion of counsel (Annex D). The issue of interpretation of Regulation 17 was referred to James Wolffe QC, now Dean of the Faculty of Advocates, and Gordon Balfour, Advocate. In their opinion they recognise the possibility of the two interpretations referred to above, but state clearly their view that the correct interpretation is that “ashes” are all that remains in the cremator at the end of the cremation process.

[…]

7.21 Although counsel’s opinion is clear, it is the view of the Commission that the obligation of a Cremation Authority as set out in Regulation 17 should be clarified by legislation which provides, in so many words, that the “ashes” to be given into the charge of the applicant for cremation are all that is left within the cremator at the conclusion of the cremation process and following the extraction of all metal. Cremation Authorities should review their practices immediately to ensure that they proceed on that basis.”

Counsel was asked to consider: “the meaning of “ashes” in Regulation 17 of the Cremation (Scotland) Regulations 1935 in the case of the cremation of babies and infants”, in relation to three distinct situations: neonatal infants, (children born alive who die early in life); stillborn children, (who have no legal personality); and non-viable foetuses. With regard to the latter category, their opinion briefly states:

“Non-viable Foetuses

15. There is no specific provision in the legislation for foetal remains. If the pregnancy has not progressed to 24 weeks gestation, the provisions in the 1935 Regulations, including Regulation 17, have no application.”

Counsel’s conclusions, referred to by the ICC in paragraphs 7.18 and 7.21, therefore does not relate to non-viable foetuses, although the definition within the consultation is required to cover all cremations. However, the forensic anthropological evidence of Dr Julie Ann Roberts indicates that depending upon gestational age, there are important differences between the cremation characteristics of non-viable foetuses and those of stillbirths, neonatal births and adults, [Annex E, ICC/Bonomy Report].

Problems with proposed definition of “ashes”

There are a number of problems with the suggested legal definition of “ashes”:

i] Potential confusion in terminology: By eliding the meaning of “what is left in the cremator at the end of the cremation process”, (which is not in the form of “ashes” as is commonly understood), with that of the granular cremation remains that are given to relatives of the deceased for scattering or interment, (which are generally  regarded as “ashes”), the definition neither reflects the practical situation nor the popular understanding of what is meant by the term.

ii] Imprecise wording – I: The term “all that is left in the cremator” is subjective and imprecise: a “cremator” comprises a number of component parts. In his evidence to the Mortonhall inquiry, Dr Clive Chamberlain describes the two main components of the cremator, [page 23 and Annex B]:

“the ‘ethical’ part in which the human remains are inserted and burned and after which remains are recovered. This takes place in the primary cremation chamber”.

The ‘technical’ part in which pollutants are destroyed at high temperature or otherwise treated to prevent pollution. This takes place in the secondary combustion chamber“.

He continues, [page 26],

“[f]rom a combustion viewpoint, there is turbulence created within the chamber in order to have combustion air flowing over the remains being burned. This turbulence will entrain the lightest solid particles and carry them out of the cremation chamber into the secondary combustion system. Nonetheless, the bones in an adult cremation retain enough shape and weight to remain in the cremation chamber to be raked out when the last traces of combustible material have been destroyed but those of an infant cremation may not.”

It is likely, therefore, that the some of the lighter particles will be carried over to the secondary combustion system and the subsequent dust collection equipment, generally a bag filter. A strict interpretation of “all” would necessarily include cremation residues throughout the system and gas train, the recovery from which would be impracticable.

The distribution of cremation residues throughout the system is dependent upon the manner in which the cremator is operated, which must satisfy the operating criteria set by environmental legislation: these relate to the combustion conditions necessary to prevent dioxin formation, and the regulation of emissions, primarily dust and mercury.

iii] Imprecise wording – II: By focussing on what is left in the cremator, even if this is restricted to content of the primary cremation chamber/hearth, the definition does not take into consideration the efficiency of the recovery/removal of this cremation residue. The Mortonhall report indicated that there are a number of factors which may influence the efficiency of recovery: it suggested, [section 8.2, pages 122 to 124], that the variability in the recovery rates from individuals of >16 weeks may be attributed to: i] the characteristics of the cremation process; ii] the manner in which they were recovered from the cremator; iii] non-recognition as human foetal or infant remains.

iv] Composition of cremation residues and resultant “ashes”: The evidence of Dr Julie Ann Roberts in the ICC/Bonomy report concludes inter alia:

“[i]t has been demonstrated that foetal bones do survive the cremation process and they can be identified and recovered from at least 17 weeks gestation”, [page 124],

the corollary to which is that prior to 16-17 weeks gestation, identifiable foetal bones cannot be found. Importantly, she also suggested:

“it seems highly unlikely that even if a foetus was of a very young gestational age there would be no cremated remains left, if the coffin and personal effects were included in that definition,” [page 112],

the corollary to which is that in these circumstances the cremated remains of those of a very young gestational age may comprise very little of the foetus. Against this, however, must be set the assertion in section 2.9 of the Mortonhall Report, “What do parents think?”, that

“no matter how small a quantity of the ashes were actually the remains of the body of their child they would still have wished to have had the right to make a decision about the disposal of ashes.

[…]

Many other parents felt that even if it could not be shown that any element of their child was present in the ashes, they would still have cherished the opportunity to have the ashes of the coffin, blanket or toy that had been in contact with the baby or had formed part of the baby’s last resting place.”

Comment

The above discussion indicates that there are a number of problems with the suggested definition of “ashes” in general, and the regulation of the cremation of babies less than 24 weeks’ gestation in particular. The ICC’s proposed definition was based upon counsel’s opinion, which was included, unaltered, in the consultation paper. However, counsel’s opinion did not address non-viable foetuses, and was given in response to an enquiry on the meaning of existing legislation, rather than on the formulation of new measures.

The Infant Cremation Commission’s Report states that at its core “are sections addressing the nature of “ashes” and the means available to ensure the recovery of ashes in baby and infant cremations”, [para.1.4]. It continues by proposing two important changes to the law relating to cremation in Scotland: i] that there should be a statutory definition of “ashes”; and ii] the introduction of statutory regulation relating to the cremation of babies of less than 24 weeks’ gestation. However, these objectives cannot be achieved simply by the introduction of a single definition clarifies the meaning of “ashes”, and must be accompanied by other provisions “to ensure the recovery of ashes in baby and infant cremations”.

This could be addressed by defining two terms: i]  “cremation remains (or residue)” in terms of what is left in the primary cremation chamber at the end of the cremation process; and ii] “ashes” which are the result of the cremulation (grinding) of the cremation remains, following the removal of any metal. Whilst a single, precise definition would provide greater certainty in the meaning of “ashes” per se, the use of two term is necessary if criteria relating to the recovery of cremation remains from the primary cremation chamber are to be specified[1].

In establishing such criteria it would be necessary to decide whether to adopt the “broad” or “narrow” interpretation was what was included in the “ashes”, [ICC/Bonomy Report, Annex D, para.4], viz.

““the narrow interpretation” (i.e. that used by the FBCA)  the is that it concerns the remains of the body itself and does not extend to the remains of any associated item such as the coffin or any item cremated with the body.

“the broad interpretation” (i.e. that used by the ICCM) is that it encompasses all that is raked from the cremator following the cremation of human remains (other than items which could not, on any view, be regarded as “ashes” such as the remains of the coffin’s metal fixtures) regardless of whether that substance is comprised of the remains of the body itself. In our view.

The latter interpretation was favoured by counsel and is suggested by the consultation. If this option is chosen, bearing in mind the evidence of Dr Roberts, it should be clear to parents exactly what such “ashes” might contain.

The Scottish Government’s initiative to clarify the term “ashes” is to welcomed: however, Cremation Authorities in Scotland make up only 10% of the total number of Cremation Authorities in the United Kingdom, [ICC/Bonomy Report, para. 7.23], and unless parallel changes are made elsewhere in England, Wales and Northern Ireland, there is the potential that “such a legislative change … would in itself create another area of uncertainty and possibly confusion.”

Update 6 July 2019

S3 Cremation (England and Wales) (Amendment) Regulations 2016. 

3. In regulation 2(1) in the appropriate place insert—““ashes” means all the material left in the cremator after a cremation, and following— (a) the removal of any metal, and (b)any subsequent grinding or other process which is applied to the material;”.

S45 Burial and Cremation (Scotland) Act 2016

Meaning of “cremation” and “ashes”
(1) In this Act, “cremation” means the burning of human remains; and includes—(a) where a grinding process is applied to the burnt human remains, that process, and (b) where any other process is applied to the burnt human remains, that other process.
(2) In this Act, “ashes” means the material (other than any metal) to which human remains are reduced by cremation.
(3) In this section—“coffin” includes any type of receptacle, “human remains” includes, where remains are clothed, in a coffin or with any other thing, the clothing, coffin or other thing.

[1] Other criteria might be required to ensure that the conditions under which cremation is carried out optimize the quantity of cremated remains of non-viable foetuses &c, such conditions would be subject to environmental legislation and guidance. The Environment Agency’s Process Guidance Note 5/2, issued under regulation 64(2) of the Environmental Permitting (England and Wales) Regulations 2010 SI 675 provides statutory guidance for crematoria in England & Wales and in Northern Ireland, and non-statutory guidance in Scotland.