WHO HOLDS THE rights to a person’s body after they die?

In the wake of a UK High Court’s ruling involving a 14-year-old girl’s wish to have her body frozen after her death, there are a lot of questions being asked about options a lot of us didn’t know we had.

The case revolved around a dispute between the teenager’s divorced parents – the mother, who supported her daughter’s wishes, and the father, who didn’t.

The judge ruled in the mother and the girl’s favour, in a case that was called “the only one of its kind”.

“It is an example of the new questions that science poses to the law – perhaps most of all to family law,” Judge Peter Jackson said.

A comforting thought 

It raises questions about the decisions of parents in relation to their children, the capabilities of science, and the ethics around the advancement of technology and machinery.

Dr Andrea Mulligan, lecturer of Medical Law at Trinity College Dublin and practicing barrister, explains that it’s never the case (in Irish or in British law) that you can “own a dead body”.

“The law says you can’t own a dead body, but families have dispositional control, which are rights and responsibilities such as burying a loved one.

“The order in this case relates to dispositional control, which was given to the mother and based on the child’s wishes that she wanted to be frozen.

“It’s important to note the court doesn’t say it’s in the child’s best interest, but based on the child’s wishes. The idea would be that it would comfort the child in her last days.

“There isn’t, as some medias were reporting, a right to be frozen.”

But this case raises more questions than it answers, as Dr Mulligan demonstrates:

If the child didn’t want to be frozen, could parents freeze their children? Technically yes, but the answer is there is no legislation around this issue – it’s mostly governed by common law.

The law is so slow to change on many fronts, but with the advancement of technology, the changes that are needed – around digital safety in particular – are greater than before. The technology of medicine is no different.

“There is a kind of technology gap, where the law doesn’t provide for this, but there are so many technological needs that need to be addressed before cryonics do.”

Ethical?

But what are the legal implications around who’s responsible for and who legally owns the body when a company has been paid to preserve it?

“What law governs this whole arrangement says that bodies cannot be owned. But there are exceptions to this – if a school of anatomy took in bodies and preserved and presented in certain ways, the law views that they are changed and can be owned.”

If a company takes in a body to freeze it, the relationship, I would imagine, would be governed by a contract, but then what happens when the adult who signs the contract – in this case the mother – dies?

If cryonics become popular, Dr Mulligan adds, the state will eventually be expected to weigh in on decisions and bring in legislation around the issue.

They would also probably have to bring in provisions so that if the company goes bankrupt, they would have to pass the bodies on so that they’re looked after. As this is very expensive, the state would probably be responsible for them.

And that’s without getting into the ethics around bringing someone back to life a hundred years from now, and if it would be fair on the child.

This was the primary concern of the father of the 14-year-old British girl. During the case he told the court:

“Even if the treatment is successful and she 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.”

Dr Mulligan takes this thought further, by considering the medical ethics behind it:

“Informed consent and ethical medical treatment is crucial, and we don’t know what treatment will bring people back to life. What their health will be like if they are brought back? What will life will be like then?

“Who will decide to bring you back to life, and how?”

Read: Girl who died of cancer won the right to have her body frozen

Read: The ‘right to be forgotten’ and consent education: The gaps in Ireland’s protection of children