Did the High Court hand down a judgment on cryonic preservation?
â€˜Policy concern cannot lead the court to decline to deal with a situation that demands resolution,' says Mr Justice Peter Jackson
In a judgment published by the High Court today, a teenage girl achieved her wish to have her body cryogenically frozen after death. While media attention has primarily focused on the science of cryogenics, the landmark ruling more importantly paves the way for the courts to make prospective orders appointing a sole administrator of a child’s estate before a child dies, according to lawyers involved in the case.
The 14-year-old girl – who can only be identified ‘JS’ due to reporting restrictions – was diagnosed with a rare form of cancer last year and decided she wanted to be cryo-preserved – the freezing of a dead body in the hope that resuscitation in a distant future could result in a cure for a specific illness.
The case came before the Family Division of the High Court because of the novel issues it raised and, particularly, because JS's parents disagreed over what should happen to their daughter’s body after death. JS’s parents are divorced and she had lived most of her life with her mother. Since 2008, her father was restricted to written contact only.
In a letter to the presiding judge, Mr Justice Peter Jackson, JS said that she wanted ‘to be given a chance to be cured and woken up’ because ‘I want to live and live longer and… in the future they might find a cure for my cancer and wake me up’. In support of her case, JS’s lawyers, Dawson Cornwell, argued that the resolution of the issue would prevent undignified scenes later and protect the applicant’s welfare during life.
Despite no objections to her wishes by a social worker, GP or the hospital trust which treated her, the view of JS’s father differed. Kilic and Kilic Solicitors, representing the father, argued that a person could not control the disposition of their body after death following Williams v Williams  LR 20 ChD 659, that there may be a later change of circumstances that would undermine the decision, and that as a matter of policy the court may not wish to encourage similar applications.
During the case, the father told the court he respected his daughter’s decision, adding: ‘This is the last and only thing she has asked from me.’
Jackson J made an order giving the mother responsibility to carry out JS’s wishes for the preservation of her body after death. He also granted an injunction in personam preventing the father from applying for a grant of administration in respect of JS's estate, making or attempting to make arrangements for the disposal of JS's body, and interfering with arrangements made by the mother with respect to the disposal of the child’s body.
Ruling in JS’s favour, Jackson J said that a decision entrusting powers to the mother did not contravene the principle in Williams and that there was no chance of a change of circumstances owing to the ‘long-standing family breakdown’.
On the policy implications, he added: ‘I acknowledge that this decision might conceivably encourage a small number of other pre-death applications, but if these were wrongly brought they could be dealt with accordingly. The policy concern cannot lead the court to decline to deal with a situation that demands resolution, and in fact the issue of viewing the body has only arisen here as a result of the condition imposed by the father in response to JS's application.’
Jackson J added that the case did not set a precedent for any other cases and made an order for disclosure of the papers to the Human Tissue Authority. In giving the judgment he stressed that the role of the court was not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements. He also acknowledged that the case was an example of the new questions that science poses to family law.
Speaking to Solicitors Journal, Amy Rowe, an associate at Bindmans who represented the mother, explained the complexities of the case and its importance: ‘Children cannot make a will so the child involved could not appoint an administrator to make arrangements for the disposal of her body before she died, which is something that an adult can do. When a child dies, any person with parental responsibility is appointed as administrator of the child’s estate. In this case, both parents had parental responsibility but they did not agree about the cryopreservation.
‘There is legislation and case law clearly applicable to disputes that arise after a child has died but the difficulty with this case was that argument about the cryopreservation issue could not be delayed until after the child’s death as the process has to be started immediately if it is to happen at all.
‘It was complicated in the sense that the parties and the court were traversing a novel issue, and while there was case law involving disputes litigated after the death, there was no case law supporting the making of a prospective order in life, to take effect after death,’ she continued.
‘The landmark aspect of this decision is that the judge made a prospective order, that would take effect when the child died, appointing the mother as a sole administrator of the child’s estate so that she could make arrangements and put into effect the cryopreservation process.’
Cryonic preservation is not regulated by the Human Tissue Act 2004, which regulates the disposal of human remains, as it was not contemplated when the legislation was passed. Concluding, Justice Jackson raised the possibility of the regulation being revisited in the future. ‘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.’
‘This case says little about the lawfulness of particular ways of disposing of human remains. The HTA does little to govern disposal of remains and was simply found not to apply in any significant way in this case,’ Stephen Crispin of Harcourt Chambers told Solicitors Journal.
‘There is simply very little law as to what amounts to a proper disposal of a body. Whether the HTA ought to be revisited depends whether lawmakers think there is value in restricting a person's right to choose how remains should be disposed of in the absence of any public health concerns.
‘Of course, a person is not able to make decisions that are binding on their executors as to how their body should be disposed of and this case does not change that (the mother could lawfully have chosen not to go ahead with cryopreservation).’
Asked whether elements of the press had understood the complexity of the decision, Crispin replied: ‘This decision is landmark in the sense it is the only case we are aware of in which the court exercised powers to pass over persons otherwise entitled to a grant of letters of administration prior to the death of the person whose estate was being considered.
‘The case does not alter the law regarding lawful disposal of a body (cryopreservation was lawful before and has been carried out in this jurisdiction before), it does not create an avenue through which people could seek orders binding on their executors as to how their body should be disposed of.’
JS died on 17 October 2016. A reporting restriction order was in pace until one month after her death.
Frances Judd QC and Dr Rob George of Harcourt Chambers were instructed by Dawson Cornwell for JS. Stephen Crispin of Harcourt Chambers was instructed by Bindmans for the mother. And Helen Khan of Pump Court Chambers was instructed by Kilic and Kilic Solicitors for the father.
Matthew Rogers is a reporter at Solicitors Journal