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An unusual and tragic family law case hit the headlines last week, regarding the last wishes of a terminally ill teenage girl (JS) to be cryogenically frozen after her death. She hoped that one day, after a cure for her cancer was found, she might be woken up and resume living her life. We know now that JS has sadly died, and that her wishes were indeed carried out, but the question of under what circumstances the family court got involved has been misconstrued, so we thought we’d take a closer look.

In the full decision on the case which you can read here, Sir Peter Jackson J sets out the primary reason for the court’s involvement: JS, aged 14, was too young in law to make a Will herself and appoint an executor to carry out her wishes. If she had been able to do so, the court knew she would have appointed her mother, and her mother would have been able to make arrangements for the disposal or preservation of her remains in accordance with her wishes. There would have been no dispute if she had been over 18.

Because JS could not legally enforce her own wishes, her parents had legal responsibility for making arrangements after her death. But they could not agree. The parents do not enjoy a good relationship. JS had not seen her father for eight years, and didn’t want to see him before her death – his application to court for direct contact with her was refused last year. He is currently suffering from cancer himself.

JS’s mother supported her decision, and her maternal grandparents had managed to raise enough money to enable the process of cryogenic freezing to take place if the court agreed. This included transporting her body to the USA where the facility is offered, as there is no scope in this country. But JS’s father had serious concerns about her choice, as the court reported:

“Even if the treatment is successful and [JS] is brought back to life in let’s say 200 years, she may not find any relative and she might not remember things and she may be left in a desperate situation given that she is only 14 years old and will be in the United States of America.”

As the court hearings followed their course, the father changed his mind and eventually did support JS’s wishes. However he had remaining concerns about costs and sought reassurance from JS’s mother that he would not be pursued for any financial assistance with the process nor anything else.

What the father really wanted, it seemed, was to see his daughter’s body after her death. If cryogenic preservation were to be allowed, that would be impossible due to the necessary processes; it was also against JS’s stated wishes and those of her mother.

The other important issue to understand in the case was that the court was not sanctioning the process of cryogenic freezing, and could not make an order binding the health trust treating JS to make it happen, even if it wanted to. The court was careful to point out that although the health professionals treating JS were keen to respect her wishes and give her the best care possible leading up to and following her death, they were deeply uneasy about her desire to be cryogenically frozen and initially concerned that the process required to prepare her body before and after her death would be illegal, or would put other patients at risk of discomfort or compromise their care. The court heard evidence from the hospital that they had investigated at length what processes were necessary to carry out JS’s wishes, and had concluded that it was not illegal and could practically be done. They would support the mother in her arrangements if that was what the court ordered.

The court made the order appointing JS’s mother sole administrator of JS’s affairs after her death, and prohibited the father from becoming involved or attempting to do so. The mother therefore had scope to arrange JS’s cryogenic preservation. It also meant the court effectively rejected the father’s wish to see JS’s body after her death.

JS sadly died, but in the knowledge that her wishes would be carried out, which her carers felt would give her some comfort in her last days. Her mother arranged for a volunteer organization of cryogenics enthusiasts to prepare JS’s body appropriately, and the process was completed as JS wanted. The court records however, that the process did not run smoothly: the mother’s time in JS’s last days was taken up with it, and the hospital felt that it was subjected to demands it had not agreed to. The judgment ends with a recommendation that the government might consider regulating this process, and the court makes a referral of the papers to the Human Tissue Authority.

If you’ve got any questions about what you have read or would like to speak to Simon, Gail, Sue, Adam or Tricia about a family law matter, please give us a call on 01223 443333 and make an appointment.

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