Whose death is it anyway? The right to dispose of a body and pre-death decision making in plain English

Re JS (Disposal of Body) EWHC 2859 (Fam) 10.10.2016

Last month saw the three Brexit judges on the front pages, unfairly lambasted by the media just for doing their jobs properly. It’s a shame that the press who seem, on the whole, to rather like this latest Family Court decision, haven’t sought to make Mr Justice Peter Jackson their cover star this month, this time with a huge respect for a judge who has done his job extremely well. In a clear, concise and incredibly sensitive judgment – superbly drafted not only in what it says, but in how he makes inferences about those matters that he doesn’t explicitly describe – Peter Jackson J has dealt with what must be one of the most difficult and tragic cases to come before the courts this year.

The case has been hailed in the headlines as a victory for “the right to be cryogenically frozen” although if the sub-editors had bothered to read this admirably plainly written judgment properly (which you can read here) they would find that Jackson J confirms exactly the opposite.

There is simply no right of anyone, child or adult, to determine what happens to your own body after you die. Your dead body is not your own property to be disposed of by your will. The decision will always be left in the hands of others.

As an adult you can of course write a will, name your own executors, express your wishes and then hope that you have chosen your executors wisely. Happily, in most cases the people you have nominated will obey your wishes and dispose of your body as you have asked; but if they decide not to comply with your request there is little you can do about it.

The difficulty for JS, the unfortunate child at the centre of this case, was that she was facing her death from cancer at age 14, so JS was still a minor and children can’t write wills. Without a court order what happened to her body would be left to be decided by her parents. JS would not have had any difficulty if both her parents had agreed with her wishes and with each other. However, whilst her mother with whom she lived was willing to respect JS’s wish to have her body cryogenically preserved, her estranged father did not agree. JS knew there was going to be a dispute between her parents over her body and not unreasonably this “capable, bright, intelligent young person” wanted to know the outcome of this dispute before she died.

There is no new law in JS’s case, only new and tragically unique facts. As Mr Justice Peter Jackson put it, the case was decided “in accordance with established principle, or with principle correctly established”. JS requested that her mother alone should have responsibility for deciding the fate of her body after death. The Court has already, on several occasions after a person’s death, determined who has the authority to dispose of their body. The only real legal issue was whether the court had the power to make a prospective order.

The NHS Trust providing the palliative care to JS did not stand in the way of the order she sought, despite the clinicians’ misgivings about her wishes. The Trust were understandably concerned that her request was lawful – but after consultation with the Human Tissue Authority all agreed that cryonics was lawful, furthermore, the process was practicably achievable.

The decision then comes  down a finding that JS’s mother could make the arrangements for the disposal of JS’s body, in preference to her father. In making this order the judge is clear he was doing no more than removing the disadvantage that JS was under as result of her age. He goes no further than that, as JS could not be put in a better legal position than she would have been if she had been an adult. JS could not require fulfillment of her wishes by bringing the case. Despite the headlines, the judge did not make any order about a right to whole body cryopreservation.

The only novel legal aspect of this case is that the dispute was litigated before JS died and the only new ‘right’ potentially described is the entitlement “to know whether or not [her wishes] 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”.

Mr Justice Peter Jackson will have been well aware that his judgment would make the national and international headlines, and so he did his best to explain what he was doing for the journalists and their sub-editors:

“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.” 

The judge was right about that too – he just couldn’t emphasise it enough. Coming from a judge who won plaudits after another recent case for his exemplary use of plain English (and emojis) so his decision would be accessible to the young children involved (See [2016] EWFC 9) he may have thought he couldn’t put it any clearer. But when dealing with the media it doesn’t seem to matter how transparent a judge makes it – headlines sell the papers, accuracy doesn’t. The “right to be cryogenically frozen” is how the case has been ubiquitously portrayed; even the BBC website felt the need to illustrate their report with a purely fantastic “artist’s impression of how cryogenically preserved bodies might be stored in the future”.

In fact the judgment creates no such right nor does it express any view about whether cryonics is a good idea. The judge has released the anonymised case papers to the Human Tissue Authority to assist any future debate about the issue but, properly, does not delve into it himself. As he states, if regulation is required there would need to be consultation with a wide range of interested parties.

Although perhaps the important post-mortem post script added to his judgment may give an inkling of the judge’s view. He records receiving a detailed note from the solicitors for the Trust after the death that made “unhappy reading”. In “brief and understated summary” JS’s mother was said to have been preoccupied with the post-mortem arrangements at the expense of being fully available to her daughter on her last day and the voluntary organisation that was arranging the preparation of JS’s body for cryonic preservation is said to have been “under-equipped and disorganized”, causing real concern to the medical and mortuary staff.

After the decision was given Mr Justice Peter Jackson visited JS in hospital. It is reported in the media that she had asked to meet “Mr Hero Peter Jackson”. For his humanity, his sensitivity and his plain English, this is an accolade well deserved.