Legal issues behind UK 14-year-old girl’s right to be cryogenically frozen

December 1, 2016

 

In the UK case JS –v– M and F before the High Court of Justice in the Family Division, a 14-year-old-girl diagnosed with cancer wished to be “cryo-preserved” to give her a chance “to be cured and woken up, even in hundreds of years’ time”.  This controversial case came before the Court due to its novelty and the parents’ disagreements over the arrangements after the child’s death.  Cryopreservation or cryonics is the preservation of a dead body via freezing for future resuscitation, and the Court noted that the scientific theory behind cryonics is “speculative” with “considerable debate about its ethical implications”.  However, cryopreservation and the preservation of cells and tissues via freezing is already a well-known procedure particularly in fertility treatments, such as the preservation of sperm and embryos.  The first cryonic preservation was performed in the 1960s and currently there are two commercial organizations operating the US and Russia.  There have only been a few hundreds of individuals that have undergone the expensive process, which costs approximately £37,000 per body. 

 

In this case, JS’s cryonics required complex arrangements involving the coordinated participation of third parties including the hospital, the funeral director as the designated transporter, and the US commercial organization for storage.  JS’s death had created legal and ethical issues for the hospital trust as it must comply with current laws and uphold its duties to other patients and staff.  Ultimately, the trust decided to follow JS’s wishes not because it was endorsing cryonics, but rather the procedure was considered best for JS to ease her agitation over her imminent death. 

 

With regards to the transportation of a dead body to the US for cryonics, the Court was first satisfied that JS had the capacity to bring the application as an intelligent young person articulating strongly the views on her current situation, and she was supported by her mother in this pursuit.  The Court considered the Human Tissue Act 2004 and found that the current case was neither regulated nor limited by the current statute, as the present situation was not contemplated when the legislation was passed.  The Court then considered old authorities and found no offences or unlawful treatment of dead bodies would result in the current case, and thus JS’s wishes were not deemed to be illegal.  Moreover, there were no US authorities that prohibited the shipping of human remains to the US for cryonic preservation, provided the UK funeral director and US organization can ensure the compliance with local, state and federal laws.

 

JS’s father opposed the application stating that she “may not find any relatives, she might not remember things and she may be left in a desperate situation given that she is only 14 years old in the US”.  While the Court was conscious of various issues requiring further regulation, it decided it only had to make an immediate determination based on the information before the bench while refraining from setting a precedent for future cases.  As the Court made clear, the case was only about resolving the dispute between JS’s parents’ disagreements and what may happen after JS’s death as much as possible.

 

The Court was cautious not to distinguish the Williams v Williams decision where it held a dead body is not property and therefore cannot be disposed of by will.  Thus, under English law, there is no right to dictate the treatment of one’s body after death.  However, the Court got around this problem by simply resolving the disagreement over selecting which parent is best placed to make decisions during JS’s lifetime.  It was neither approving or disapproving what will happen, and there was no public policy concern obliging the Court to decline to review the case.  Given the estranged relationship between JS and her father, the Court decide that the mother was best placed to make arrangements during JS’s lifetime for the preservation of her body after death, as well as preventing the father from any intervention.  Under Section 8 of the Children Act 1989, the Court can grant such specific order regarding parental responsibility of a child under the age of 18, though it does not extend to regulating events after the child’s death.

 

While it appears the case is settled after JS’s cryonic preservation was duly carried out in October 2016, there are certain profound legal issues left unresolved.  For one, would JS still be considered a minor or an adult when she is revived again?  If she is to be considered a minor, who will have the legal guardianship of her, and what would her support structure be if the revival occurred 50, 100, or 200 years from now?  Furthermore, what would be her rights with regards to any inheritance from her parents, and would she have any claims on any estates if she was already “dead”?  Indeed, what would be JS’s legal status – would she be considered dead, alive, or somewhere in between?  Would JS require a new birth certificate, or does she simply resume her former self from the moment she was pronounced dead by the hospital?  Consequently, a myriad of legal issues can become intertwined requiring careful consideration into areas of family law, wills and estates, insurance law, taxation and more.  As there are wide gaps in current regulations to deal with cryopreservation, legislatures around the world ought to consider how to bridge the gaps when more individuals seek to carry out the procedure in the future. 

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