What Re JS (Disposal of Body) is not about

A quick reprise of the court’s unambiguous judgment

On 19 November, we posted Cryonics and the law: Re JS (Disposal of Body), which included a report of the case and some observations. There has been extensive media interest in the court’s decision relating to JS, although many of the statements and assumptions made do not bear close scrutiny. Throughout his judgment in Re JS (Disposal of Body) [2016] EWHC 2859 (Fam)Peter Jackson J was at considerable pains to dispel any misinterpretations that might arise, as will be evident from the following extracts. In the circumstances, we thought that the relevant passages were worth repeating [our  emphases]:

[13] … The outcome is that the hospital is willing to do what it properly can to cooperate for the sake of JS, because the prospect of her wishes being followed will reduce her agitation and distress about her impending death. The decision centres entirely on what is best for JS. The [Hospital] Trust is not endorsing cryonics: on the contrary, all the professionals feel deep unease about it.

[15] …Advice received from the [Human Tissue Authority (HTA)]…confirms that what is proposed in this case is not regulated by the statute and that accordingly the HTA currently has no remit. It is thought that the present situation was not contemplated when the legislation was passed.

[16] I have also been taken to the old authorities on the unlawful treatment of dead bodies … 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.

[27] …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] …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.

[30] …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.

[45] …The [Children Act 1989] applies to parental responsibility for a child, defined as a person under the age of 18. It does not extend to regulating events arising after the child’s death.

[46] …In making this [specific issue] order, the court is not approving the choice of arrangements, but it is giving JS and her mother the opportunity to make that choice.

[48] …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.

[49] 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

David Pocklington and Frank Cranmer

Cite this article as: David Pocklington and Frank Cranmer, “What Re JS (Disposal of Body) is not about”, in Law & Religion UK, 20 November 2016, http://wp.me/p2e0q6-8m7

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