The mother of a dying girl has been given the right to cryogenically freeze her daughter’s body after her death, in the hope that she will one day be resurrected and cured. What are the human rights implications?
This is the first time that such an order has been granted by a UK court. The case involves important issues relating to people’s rights in such situations. Mr Justice Jackson, deciding the case, also considered the potential human rights aspects of the girl’s wishes.
“I’m only 14 years old and I don’t want to die”
The girl, known as JS, was 14 years old at the time the case was decided. She was dying of cancer and was being treated palliatively, that is the doctors accepted there is no hope of curing her. Sadly, she died a few days after the hearing. The judge went to see her in her hospital bed shortly before she died.
JS wanted her body to be cryogenically frozen in the United States after she dies. This is an extremely rare procedure and has, according to the court, only been done by a few hundred people worldwide. Her hope was that one day in the future, her body would be unfrozen and her cancer cured.
This is what she said in a letter to the court:
I have been asked to explain why I want 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.”
The court case was prompted by a dispute between JS’s parents, who are divorced. She lives with her mother and has had no contact with her father since 2008. In short, her father does not want her body to be frozen, her mother does. The judge’s task was to decide which parent would have control over JS’s body.
The judge ultimately decided that the mother would have rights of administration over the body once JS died, not her father. The effect of this would be that JS’s wishes to be cryogenically frozen could be fulfilled.
How human rights came into play
The human rights part of the judgment is not particularly clear, though human rights appear to have played an important part in the judge’s reasoning.
Mr Justice Jackson said that the English law has long recognised that there is no right of property in a dead body. There was therefore “no right to dictate the treatment of one’s body after death”.
However, human rights law has long recognised that the right to family life guarantee under Article 8 of the European Convention on Human Right gives relatives of people who have died rights to bury one’s relatives. The judge said the “wishes of the deceased are relevant, perhaps highly so, but are not determinative and cannot bind third parties”.
The judge did not mention a long line of cases involving relatives who have been denied access to a body, for example Pannullo v France where the European Court of Human Rights found a violation of Article 8 where there was a 7-month delay by the authorities in returning the child’s body to her parents for burial. A number of similar cases have followed, though none involving this exact issue.
In a case from 2010 called Ghai, also not mentioned by the judge, a Sikh man’s wish to be cremated atop a funeral pyre was found to be potentially protected by his right to freedom of conscience and religion under Article 9 of the European Convention, though he ultimately lost his case on the particular facts.
The final part of the judgment is most interesting. He said this
I conclude that, acting with due regard for the above principles, the court has the power to make a decision with prospective effect in the present case. To use the words of Jessel MR, it might be argued that a present right depends on the decision, in that JS’s present welfare cannot be adequately protected by the court refusing to entertain the question, whether the right is expressed in terms of Article 8 ECHR or otherwise.
From this, it appears that the judge is accepting that the right to family life is one route by which he would grant the mother rights of administration. In other words, that in order to protect JS’s welfare – of which her wish to be frozen after death is an important part – her mother must be given control over her body when she dies.
So do we have a right to freeze our bodies?
It is a shame that the judge was not clearer over whose family life rights he felt he was protecting. Is it the rights of the mother to dispose of her daughter’s body, or – more interestingly – was it the rights now of JS to decide what will happen to her body after her death? Could that right survive her death, or would it be extinguished at the moment she dies, perhaps shifting to the mother?
So the answer to the question is ‘maybe’. Clearly there is an important human rights aspect to what happens to our bodies after death. How exactly that right operates may have to be made clearer in a future case, or an appeal to this judgment.