Corporeal freedom after death?

20 November 2016 by Rosalind English

JS (Disposal of Body), Re [2016] EWCH (Fam) (10 November 2016) – read judgment

A great deal has been written about this case but few of the headlines reflect the humanity and sensitivity of the decision, which may not be ground breaking nor precedent setting, but reflects how the law should respond to individual wishes if those play out in a way that cannot harm anyone else. Post-mortem cryonics may have a certain morbid ring, but it is a matter of individual choice, provided the resources are there to pay for it. As the judge observed, it was

 no surprise that this application is the only one of its kind to have come before the courts in this country, and probably anywhere else. It is an example of the new questions that science poses to the law, perhaps most of all to family law.

Background facts and law

Peter Jackson J was faced with an application from JS, a 14 year old cancer patient whose condition had become untreatable. After researching the diminishing options available to her, JS had come across cryonics, the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future. The science ofcryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example the preservation of sperm and embryos as part of fertility treatment. But whole body cryopreservation has not been achieved in any mammal species, largely due to the difficulties of reviving brain tissue. As the judge said,

cryonics is cryopreservation taken to its extreme.

Only three organisations in the world provide this service, one in the United States being involved in this case. The cost is about ten times as much as the average funeral. Although JS’s family is not well off, her grandparents had raised the necessary funds. Whatever anyone may think of this procedure, there was no doubt about JS’s intelligence and her capacity to make this decision. She wrote, in response to asking to explain why she wanted “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.”

Whilst the costs of this procedure do not fall on the state, cryonic preservation requires complex arrangements involving the participation of third parties. The body must be prepared within a very short time of death, ideally within minutes and at most within a few hours. Arrangements then have to be made for it to be transported by a registered funeral director to the premises in the United States where it is to be stored. These bridging arrangements are offered in the UK for payment by a voluntary non-profit organisation of cryonics enthusiasts. Evidently, where the subject dies in hospital, the cooperation of the hospital is necessary if the body is to be prepared by the volunteers.

The whole procedure is made easier by the fact that it engages no part of the Human Tissue Act. However this may not remain the case. The judge observed that the regulatory authority under the Act

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.

It is difficult to see why the Human Tissue Authority should be involved in what is essentially a privately funded decision to make arrangements for a body that has no environmental or public health consequences. The question of standing is equally straightforward, since the deceased cannot speak for him or herself. Happily the HTA has no traction yet.

In short, what the fourteen year old cancer patient wanted was not illegal.

The difficulty this case presented therefore was not the ripple effect of allowing the request; it was a domestic one. JS’s father, estranged from the family and himself a cancer sufferer, was concerned that he would not be pursued for any of the costs of the cryonic process.

But he also requested that he and other members of the family should be able to view JS’s body after death. JS objected to this request. Had she been over 18, this would have created no difficulties; she could have appointed her mother as executor, and the it would have been for the mother to make arrangements for the disposal of JS’s body, no doubt in accordance with her wishes. However, children cannot make wills. Peter Jackson J’s approach was therefore to try to remove the disadvantage that JS was under as result of her age. 

The judge was careful to emphasise that, absent the Human Tissue Authority, the court was doing nothing further than providing a means of resolving the dispute between the parents. This was not to be a judicial pronouncement on the desirability or otherwise of cryonic preservation or any other post mortem procedure outside the HTA. The judge  acknowledged that there were, as in any case involving hospitals, illness and death, “serious ethical issues”, and that he had received information about “procedures performed on the body after death that would be disturbing to many people.” Of course he had. But in this case, there was no anchorage for ethical objections. This case was a response to an individual request.

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

The judge was careful to keep his decision within the bounds of this particular case. He emphasised that he was not deciding or approving what should happen, but  selecting the person best placed to make those decisions after JS’s death. But it has to be said, lest anyone is thinking that this is a judicial tilt against post-mortem procedures, the judge added that this was a question of individual choice.

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.

…

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.

The sad accident of family fallout is what brought this case to court, with a resolution of the issues that we can all benefit from (despite the judge’s conscientious efforts to limit his decision to the facts of this particular case). He was not prepared to grant the father’s belated request to see JS after her death; this  “can only cause her distress in life.” This is an extremely humane, but also modern and enlightened view of an individual’s passage from life to non-life.

A late Victorian case is still our benchmark for determining whether we can determine how our bodies are disposed of: Williams v Williams [1882] LR 20 ChD 659. This establishes that a dead body is not property and therefore cannot be disposed of by will.The reasons given are
1. The parties cannot reassemble effectively after Js’s death;
2. the resolution of the issue now should prevent undignified scenes later
3. clarity will help third parties to know how they should act
4. the arrangements for JS after death will be particularly complex if she is to be preserved
… and others.
Under this precedent, cremation was regarded with great suspicion until the Cremation Act 1902, although these days, with the lack of space in graveyards, cremation is chosen in about three out of four cases. Still, 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.

However, in a society no longer dominated by the commands of the church, the need to show some sensitivity to family’s wishes regarding post mortem arrangements must surely prevail, provided those wishes present no harm to the public or the environment, and any expenses are privately defrayed.

The Court’s Decision

Jackson J issued  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.

But he did say that the Human Tissue Act and its implementing body might have some role in the future.  Part of the problem was the expense of these post-mortem arrangements and the possibility of the voluntary organisation not being on top of the procedures that had not been fully agreed with the hospital.

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.

If cryonic preservation were to become more popular in this country, Peter Jackson J suggested that events in this case called for “proper regulation” by the Human Tissue Authority.