In November 2016, 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, a girl referred to as “JS”: see JS (Disposal of Body), Re [2016] EWCH (Fam). We noted the case here and looked at some of the more general practicalities of regulating cryogenic preservation – the storage of the brains and/or bodies of legally-dead humans at low temperatures – here.

In the aftermath of the ruling in JS, the Charity Commission for England and Wales decided in 2017 to remove the Human Organ Preservation Research Trust (HOPRT) from the Register; and in Hipkiss v Charity Commission for England & Wales [2018] FTT (Charity) CA/2017/0014, Mr Graham Hipkiss, its sole remaining trustee, succeeded in an appeal to the First Tier Charity Tribunal against the order of the Commission. 

The Objects of HOPRT are:

“(1) Principally to conduct promote develop and co-ordinate for the benefit of the public research with a view to enabling the preservation of human organs after death for transplant purposes; (2) secondarily to conduct promote develop and co-ordinate for the benefit of the public research into the ageing process” [6].

HOPRT’s primary concern is cryonics, in the hope that it will become possible in the future to reverse the ageing process and cause of death and transplant the brain and/or other organs of a person who has been preserved cryonically in a way that will preserve that person’s individual characteristics. HOPRT is involved in providing cryopreservation services to members of the public who request its assistance and in facilitating the transportation of the preserved brain and/or body to storage facilities in America and elsewhere. Cryopreservation is a lawful activity and is not regulated by any statutory authority [7].

HOPRT came to public attention in 2016 after a much-publicised case in which the High Court ruled that a terminally-ill girl of fourteen was entitled to make arrangements for her body to be cryopreserved by HOPRT: JS (Disposal of Body), Re [2016] EWHC 2859 (Fam). The case gave rise to considerable media interest in the charity and a member of the public made a complaint about it to the Charity Commission.

The Commission had removed HOPRT on the grounds that it had been entered on the Register in 1991 by mistake – there being, in the Commission’s view, insufficient evidence that it was established for exclusively charitable purposes; its decision was not that HOPRT had ceased to be a charity since entered on the Register, but that it had never been a charity in law. The decision involved a “rectification” of the Register under s.37 Charities Act 2011 [23].

The Tribunal concluded that there was no evidence that the purposes of HOPRT as set out in the trust deed were not the true purposes of the proposed charity or that it was a “sham” [104: emphasis in original]. The purposes set out in the trust deed were indeed the true purposes for which HOPRT was established:

“We are not persuaded that there was an additional, unexpressed purpose of promoting and facilitating cryopreservation, (which activity was not in any event possible at the time the trust was executed) but consider that research (including field-research) into cryopreservation was within the contemplation of the founding trustees in expressing the objects so widely” [112].

HOPRT had been established to carry out a wide range of research activities, including those which were not yet feasible but which, it was anticipated, might become so in the future [114]. The Tribunal was satisfied that HOPRT’s broad research purposes, including research into cryonics and cryopreservation, met the first two criteria set by the case law for charitable research. However, it did have concerns about the charity’s “field-research” into cryopreservation: that no boundary was drawn, in practice, between an activity that had become the delivery of cryopreservation services to the public and the rigorous conduct of research into that activity [119]. The Tribunal pointed out that cryopreservation is a lawful activity and one for which there is clearly some level of demand:

“In these circumstances, we regard it as being for the public benefit in the first sense that charitable research into cryonics and cryopreservation, including the development of principles of good practice in the conduct of cryopreservation, is undertaken, and that it is a good thing”[120: emphasis in original]

The Tribunal:

• allowed the appeal [124];
• quashed the Charity Commission’s decision of 10 November 2017 [125];
• directed that HOPRT be restored to the Register forthwith [126]; and
• remitted to the Charity Commission generally (a) the consideration of any regulatory advice or action required in relation to HOPRT’s activities; and (b) the question of whether it would be permissible for HOPRT to adopt different objects [127].