Legal and practical issues raised by judgment on long-term cryonic preservation of a body post-mortem

Introduction

On 18 November, the BBC carried the story Terminally-ill teen won historic ruling to preserve body, following the lifting the territorial reporting restrictions which existed until one month after the death of the teenager concerned, referred to as “JS”. However, the judgment was far from the “historic ruling” so widely-heralded in the media and was based upon existing statutory legislation and case law. It would not have come to court had JS not been a minor whose parents were in dispute over their consent to permit this new, but not illegal, option for preserving the body after death, infra.

Nevertheless, the case highlighted the fact that such techniques are currently outside the scope of the Human Tissue Act 2004 and therefore beyond the remit of Human Tissue Authority (HTA). Furthermore, the detailed note from the solicitors for the Hospital Trust expressed “real misgivings about what occurred on the day of JS’s death” on which the judge commented “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.”

The judgment

Peter Jackson J delivered his judgment on Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) on 10 November 2016. The judgment is in three parts: the first part, determining the application, delivered orally on 6 October; the second part, containing further legal analysis, handed down on 19 October; and the final part, concerning subsequent events, handed down on 10 November. The judgment was delivered in private; the version on BAILII “may be published on condition that the reporting restriction order (see Appendix) is observed and the anonymity of the persons concerned is strictly preserved”.

PART 1 – 6 October 2016: the application

The applicant, JS, was a 14-year-old girl diagnosed with a rare form of cancer. At the time of the oral judgment, she was receiving palliative care and knew that she would soon die [3]. Her parents were divorced, their relationship was “very bad” and she had had no face-to-face contact with her father since 2008 [5]. JS had used the Internet to investigate cryonics: freezing a dead body in the hope that resuscitation and a cure might be possible in the distant future [6].

Peter Jackson J had no doubt that JS had the capacity to bring the application: her solicitor had described her as “a bright, intelligent young person who is able to articulate strongly held views on her current situation” [9]. She had written in support of her application as follows:

“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.” [10].

Her mother supported JS in her wishes: her father opposed her [11].

The NHS Trust had given the matter careful consideration at a senior level and the hospital was willing to do what it properly could to cooperate, for JS’s sake, because the prospect of her wishes being followed would reduce her agitation and distress about her impending death. In doing so, the Trust was in no way endorsing cryonics [13]. It was understood that the process could only go ahead if the volunteers who were to carry out the procedure had 24-48 hours’ advance notice of the likely time of death to allow them to get to the hospital. If death occurred without warning, the process could not take place [14]. The Trust also drew attention to the fact that the Human Tissue Authority had no remit in the matter because what was proposed was not regulated by the Human Tissue Act 2004 [15]. What JS wanted to happen did not seem to be illegal [16] and there was no objection to it from her social worker or GP [18].

Peter Jackson J pointed out that much of the current problem arose from the fact that JS was a child, “albeit a legally competent one”, because children cannot make wills [25]. What she proposed was practical [26] and the court was not making orders against third parties: “All the court is doing is to provide a means of resolving the dispute between the parents” [27]. Nor did the present case set a precedent for future ones [28].

The case was not about the efficacy or otherwise of cryonics [30] or whether JS’s wishes were 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” [31].

Having considered all the arguments, His Lordship was satisfied that the court had the power to make the order requested by JS; and a decision entrusting powers to her mother did not contravene the principle in Williams v Williams [1882] LR 20 ChD 659 that a person cannot control the disposition of her body after death. He made the following orders:

(1) A specific issue order permitting the mother to continue to make arrangements during JS’s lifetime for the preservation of her body after death.

(2) An injunction in personam preventing the father from

(i) Applying for a grant of administration in respect of JS’s estate.

(ii) Making or attempting to make arrangements for the disposal of JS’s body.

(iii) Interfering with arrangements made by the mother with respect to the disposal of JS’s body.

(3) A prospective order under s.116 of the Senior Courts Act 1981, alternatively under the inherent jurisdiction of the High Court, to take effect upon JS’s death, appointing the mother as the sole administrator of her estate in place of the mother and father jointly, and specifying that the mother shall thereby have the right to make arrangements for the disposal of the body, and to decide who should be permitted to view it.

(4) An order for disclosure of the papers to the Human Tissue Authority [41].

He would not make a prohibited steps order over and above the injunctions [42].

PART 2 – 19 October 2016: the legal issues

Three issues were addressed: the making of a specific issue order, the disposition of a body, and prospective decisions. With regard to the first, by s 8 Children Act 1989 a specific issue order is “an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.” Whilst the Act applies to parental responsibility for a person under the age of 18, it does not extend to regulating events arising after the child’s death: R v Gwynedd County Council, ex p. B [1992] 3 All ER 317 (a decision under the Child Care Act 1980) and Fessi v Whitmore [1999] 1 FLR 767 were cited.

The making of a specific issue order is governed by the welfare principle and in the instant case “the predominant features are JS’s wishes and feelings and her acute emotional needs” [46]. Peter Jackson J held that these were best met by an order granting the mother the right to make arrangements during JS’s lifetime for the preservation of her body after death.  In making this order, the court was not approving the choice of arrangements, but it is giving JS and her mother the opportunity to make that choice.

With regard to the disposition of a body, the widely-known case-law emanating from the decision of Kay J in Williams v Williams [1882] LR 20 ChD 659 was reiterated, i.e. a dead body is not property and therefore cannot be disposed of by will. However, the administrator or executor of the estate has the right to possession of (but no property in) the body and the duty to arrange for its “proper disposal” – an undefined term which has been subject to change over time. Consequently, in English law there is no right to dictate the treatment of one’s body after death, regardless of testamentary capacity or religion.  The wishes of the deceased may be highly relevant, but are not determinative and cannot bind third parties: The role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements: see, for example, Anstey v Mundle [2016] EWHC 1073 (Ch), [49].

Being under 18, JS could not make a valid will, Wills Act 1837 s.7, and under the Non-Contentious Probate Rules 1987 Rule 22(1)(c), each of JS’s parents was entitled to a grant of administration over her estate and, absent outside intervention, were therefore equally under a duty to arrange for the disposal of her body. Disputes between executors or administrators about the disposition of a body have been dealt with either in the manner of the resolution of a dispute between trustees or as an application to displace the administrator of an estate, pursuant to s.116 of the Supreme Court Act 1981. Peter Jackson J stated [53] “where, as here, more than one person is entitled to a grant of administration, I would interpret this section as permitting the court to substitute one for both.  If I am wrong about this, I would hold that the same result could be achieved by the court’s use of its inherent jurisdiction”

With regard to whether a prospective order could be made in life, to take effect after death, all the cases cited have involved disputes litigated after the death; in the case of JS, there was no time for litigation after death. His Lordship concluded that, acting with due regard for the principles in paragraphs 56-58, the court has the power to make a decision with prospective effect in the present case: “[t]o use the words of Jessel MR, it might be argued that a present right depends on the decision, in that JS’s present welfare cannot be adequately protected by the court refusing to entertain the question, whether the right is expressed in terms of Article 8 ECHR or otherwise”. He concluded [64]:

“It is by this route that I would justify the making of injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies”.

PART 3 – 10 November 2016: subsequent events

On 8 November, Peter Jackson J 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 [67]. Although it recorded that JS died peacefully in the knowledge that her body would be preserved in the way she wished, it raised two particular concerns [68].

• 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; and

• 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.

His Lordship approved the intention of the Trust to send a copy of the note and its accompanying documents to the Human Tissue Authority, and concluded by stating: “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”.

Some observations

Cryonics

The court observed that unlike cryopreservation, the preservation of cells and tissues by freezing, the scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications [7].  Since the first cryonic preservation in the 1960s, the process has been performed on very few individuals, numbering in the low hundreds.

The process is operated by commercial organisations in the US and in Russia, and the costs are high. The most basic arrangement, which was chosen in the instant case involves the freezing of the body in perpetuity at a cost of around £37,000, “about ten times as much as an average funeral”.

Securing JS’s wishes after her death 

Had JS been an adult, the matter would presumably have been dealt with by her leaving instructions to her executors in her will. But, as Peter Jackson J pointed out, under the law of England and Wales, a person below the age of 18 cannot make a will. So, given that her parents disagreed about her wish to be preserved by cryonics, there was evidently no alternative but to take the matter to the Family Court. However, both parents have the right to apply for Letters of Administration to deal with the estate of their child, including the right to deal with the child’s body.

As Marilyn Stowe points out, since JS did not wish her father to be involved, the court was – unusually – being asked to make orders prior to a death:

“The court not only had to prevent the father from applying for Letters of Administration but also to make orders in advance of the child’s death granting Letters of Administration to the mother and permitting her to take those steps immediately on the death of the child. 

Mr Justice Peter Jackson determined the court had jurisdiction to take all these steps and thus made an order in the interests of the child, injuncting the father. The Judge made orders to take effect on the child’s death granting the mother sole right to Letters of Administration and permitting her to have the child’s body cryogenically frozen.”

Human rights issues

At [48], Peter Jackson J observed that:

“In English law, there is no right to dictate the treatment of one’s body after death. This is so regardless of testamentary capacity or religion. The wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties. For discussion of the impact of the European Convention on Human Rights on the common law in this respect, see Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB) and Ibuna v Arroyo [2012] EWHC 428 (Ch).”

In Burrows, Cranston J observed, obiter, that in relation to Article 8 ECHR (private and family life):

“inasmuch as our domestic law says that the views of a deceased person can be ignored it is no longer good law. That rule of common law can be traced back to Williams v Williams, where it was said that directions given by a deceased as to the disposal of his body were not enforceable as a matter of law. It is quite clear from the jurisprudence of the European Courts of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account. However, this aspect of Strasbourg jurisprudence is easily accommodated within domestic law: in this type of case a person’s wishes can be regarded as a special circumstance in terms of Section 116 of the Act” [20].

He concluded:

“Where, as here, there is a conflict in terms of the engagement of family life under Article 8.1, the Court is required to focus intensely on the comparative importance of the different rights being claimed, and to balance those competing rights so as to minimise the interference with each to the least possible extent” [21].

Practicalities and lacunae in the law

Whilst it was possible to ensure that JS’s wishes were fulfilled after her death, the letter from the Hospital Trust is of critical importance in highlighting the practical issues associated with cryonics: the range of issues which must necessarily be addressed immediately before death, and the interface between medical staff of the hospital and those working for the voluntary organization involved in the preliminary stages of the cryonics process. As Peter Jackson J commented [15]

“The HTA would be likely to make representations that activities of the present kind should be brought within the regulatory framework if they showed signs of increasing. It also raises questions about the standing of the voluntary organisation and draws attention to possible public health concerns and the position of the coroner.”

Footnote 

It should be noted that the Scots law on testamentary capacity is quite different: in Scotland, “A person of or over the age of 12 years shall have testamentary capacity, including legal capacity to exercise by testamentary writing any power of appointment”: s 2 (2) Age of Legal Capacity (Scotland) Act 1991.

David Pocklington and Frank Cranmer

Cite this article as: David Pocklington and Frank Cranmer, “Cryonics and the law: Re JS (Disposal of Body)” in Law & Religion UK, 19 November 2016, https://www.lawandreligionuk.com/2016/11/19/cryonics-and-the-law-re-js-disposal-of-body/.