Explainer: The Cryogenic Freezing Case

Note: this is a re-post. If you want to view the original (19 Nov 2016) and for more quality content about law, politics and human rights head over to yourrightsmatter.uk.

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Mr Justice Peter Jackson was praised earlier this year for being the first judge to use an emoji in a judgement. In what has been lauded as an “exemplary instance of plain English”, Peter Jackson J explained in simple terms why two children, aged 10 and 12, could only have limited contact with their mother. She was a Muslim convert who had intended to spirit them away to Syria.

Just yesterday Peter Jackson J managed to cut a mass of complex issues down to size yet again in the case of JS v M and F. The case concerned the dying wish of a young girl known only as JS. For our purposes, I will give her the name Julie. Julie was 14 years old and had an aggressive form of cancer. Her wish was to be cryogenically frozen upon death. In her own words:

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.

Her solicitors described her as bright and intelligent and her mother and maternal grandparents supported her decision – having cobbled together the sum of £37,000 to allow Julie to have her body frozen.

The process involves the body being injected with a number of chemicals designed to preserve vital organs. The body is ultimately lowered into a tank of liquid nitrogen and kept at -196C. The merits of the process are, according to many in the scientific community, questionable.

Julie’s father, with whom she had an acrimonious relationship for reasons unexplained, was hesitant about her desire to have her body frozen. In what makes for upsetting reading, the father explains that if she were to be brought back in “say 200 years, she may not find any relative [sic] 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.”

Despite the father’s misgivings, the judge decided the case in Julie’s favour. He made four rulings:

  1. Granting the mother permission to make arrangements for the preservation of Julie’s body;

  2. Prohibiting the father from interfering in any way;

  3. Appointing the mother – upon death – as the sole administrator of her daughter’s estate; and

  4. Ordering the disclosure of the papers to the Human Tissue Authority.

In giving judgement for Julie, Peter Jackson J made it abundantly clear that his rationale for allowing the application and adjudicating on issues which would arise after death was because they would have a very real impact on the welfare – under English law and Article 8 of the European Convention on Human Rights (the right to a private and family life) – of Julie while she was still alive. 

He made clear that the decision was not about the merits of cryogenic preservation, nor did it set a precedent for future cases of this kind. Quite the contrary. The judge highlights that the NHS Trust was uneasy about the way in which the American company dealt with the process. This was perhaps why he made the fourth ruling: that the papers be disclosed to the Human Tissue Authority. He adds at the close of his judgement that “the events in this case suggest the need for proper regulation of cryonic preservation in this country”.

It is clear from the above that this decision was about nothing more than the right of a child to die in the knowledge that her one remaining wish would be fulfilled. No precedents were set and the ethics and merits of cryogenic freezing were left well alone. The judgement itself stands as yet another exemplary instance of plain English and it demonstrates, clearly, the paramount importance of the welfare of children under English law.   

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