Legal Issues of the 21st Century
March 16, 2010
The possibility of preserving human beings after death through cryonic freezing has presented courts and legislatures with peculiar legal questions which would challenge various assumptions on which many current laws stand. Many of those assumptions deal with traditional conceptions of death which have served as the basis for a variety of criminal and civil laws, ranging from murder and assisted suicide to inheritance and contract rights. Given the increased interest in cryonic suspension (CS) since the 1960s,1 advances in CS technology, and the growth of organizations promoting CS, many of these legal issues will emerge at the forefront of legal discourse.
Dying to Live
One of the key legal issues raised by cryonic suspension is whether a frozen body is considered legally dead even though it may be potentially viable in the future. In one of the early state cases on CS, a California court sought to determine the validity of a state agency’s decision to stop issuing death certificates to a company operating a CS facility (Alcor).2 Like most states, California requires disposition permits for anyone dealing with human remains and does not issue such permits unless death certificates are produced.3 Disposition permits are granted for specific methods of handling bodies, including cemetery burial, cremation, burial at sea and “scientific use.”4 Alcor had been obtaining such permits under the latter category as a “donee” under the Uniform Anatomical Gift Act (UAGA)5 until the agency abruptly stopped issuing the death certificates.6 The court ruled for Alcor because of the agency’s sudden “about-face” and because it failed to establish criteria specifying how an organization like Alcor could obtain disposition permits absent death certificates.7 In its ruling, however, the court did not clearly validate Alcor’s status as a donee under the UAGA and specifically noted the narrow scope of its holding on an administrative question.8 The court recognized the undercurrent of “serious questions” raised by CS such as whether people suspended by CS should be considered dead and what status should be give to their estates, but specifically avoided answering such question.9
Many states have adopted the Uniform Determination of Death Act (UDDA)10 under which death is defined by “irreversible” cessation of respiratory functions or of brain functions, which is to be determined by “accepted medical standards.”11 This often applies when people are in comas or vegetative states and the question is whether to remove life support.12 With CS, however, a patient’s respiratory and brain functions have already ceased. However, under the UDDA, CS patients could still not be legally dead if the cessation of respiratory or brain functions is reversible in the future. With current technology, it is not possible to be thawed back to life. However, such potential could exist in the future, meaning that the cessation of respiratory and brain functions of a CS individual would not necessarily be “irreversible” and thus they would not be considered dead under the UDDA.
The Mitchell case also raised the important issue of death certificates and why cryogenic firms would want to be issued them by the government. Death certificates protect such firms housing CS individuals so long as they are covered as donees under “scientific use” exceptions of the UAGA of their respective states as the death certificates allow them to get disposition permits to hold deceased bodies. However, the “scientific use” exception is one area ripe for legal dispute in the future. California’s UAGA, for example, allows for anatomical gifts to hospitals, medical or dental schools, colleges, universities, or organ procurement organizations, but only for the purpose of “research or education.”13 Individuals utilizing CS would most likely be doing so for their own health and not for research or education, but it could certainly be argued that their CS would provide important data for the latter. Another distinction between traditional donors and those seeking CS is that scientific use of post-mortem bodies would involve disposition of such bodies after their use which would not apply to those in CS as they are anticipating future revival not burial.14 Ultimately, the lack of case law interpreting the UAGA in the several states15 means that the “scientific use” category for CS organizations could be a source of litigation in the future absent clear statutes from state legislatures.
Is there a Constitutional Right to CS Before Death?
Another critical area where CS challenges current law’s assumptions about death is with pre-mortem freezing where a person enters CS before they have naturally died. There is fairly little dispute of one’s right to enter CS post-mortem as most cases in this area focus instead on the rights of those who receive and maintain the frozen individual. However, when it comes to pre-death CS, the focus is on the individual seeking to enter CS. Interestingly, California also has a landmark case dealing with this issue. In Donaldson, a patient had an incurable brain disease and sought to enter CS before his natural death.16 While the court recognized that patients can refuse treatment even if doing so leads to their death (i.e. removing life support), it distinguished such cases where death comes naturally from those where death is induced by the CS process.17 The court held that there is “no constitutional right to either premortem cryogenic suspension or an assisted suicide” and that “no statute or judicial opinion countenances Donaldson’s decision to consent to be murdered or to commit suicide . . . .”18
In taking a strong stand against pre-mortem CS, state courts like those in California draw a very clear line for those seeking to enter CS requiring them to wait for natural death to arrive first. This may be an important area of litigation in the future especially if conceptions of death change and CS is not viewed as producing death, but rather a suspension of life. Furthermore, if it can be shown that a person’s chances of post-CS resuscitation are better if they are frozen before they actually die from a certain disease or organ failure this may cause courts to view CS as pausing life rather than terminating it. In cases of pre-mortem CS, courts may likely look to the probability that CS will indeed work and to the potential for a future cure to an individual’s fatal ailment. For example, if one is just waiting for an organ donor and would only need to be frozen for a few years to wait for the organ to show up, then a court may look at pre-mortem CS in a different light – again depending on the revival rate of CS.
Other Legal Issues
Along with questions over the legal definition of death and pre-mortem CS are other important legal issues that would emerge in a world of workable CS. One of the more prescient issues would involve murder cases where the decedent was killed in a way that would leave resuscitation possible. If the absence of brain and respiratory functions are no longer “irreversible” and a murder victim can be revived through CS, then many of the harsher penalties for murder (i.e. capital punishment and life in prison) may no longer be necessary. Penalty phases of murder trials would likely focus more on a defendant’s threat to society than on the need for punishment if the victim can be resuscitated later. It might also make murder trials less difficult for prosecutors if the murder victim can later testify in court. Another interesting question in this area would be whether a CS provider that terminated the CS of one of their patients (either deliberately, knowingly, recklessly or negligently) would be guilty of murder or manslaughter. In such situations courts would have to determine whether it was possible to kill someone who had already died.
Another major issue with CS involves the Rule Against Perpetuities (RAP). Under common law, courts may invalidate certain future interests in property that vest 21 years after the death of a life-in-being (a person who was alive at the time the interest was created). The policy behind the RAP was originally focused on limiting the control of family dispositions and the ability of dead hands to dictate property ownership of the living.19 Because individuals must enter CS post-mortem, they will have already likely arranged for the disposition of their estate, or at least its management until they return. If they have created future interests in their wills or living trusts, then one could argue that such interests should not be subject to the RAP because they are not being controlled by a dead hand, but rather by a frozen hand that can return to life in the future.
As with other commercial transactions, individuals seeking CS would likely enter into contracts to pay companies, like Alcor, to perform CS services. The Cryonics Institute even offers such a template contract on its website.20 Contracts are not perfect arrangements and frequently give rise to problems regarding performance or interpretation, or both. Under the law of contracts, if a party commits a material breach (either by not paying or performing a service), the other party is entitled to stop their performance and sue for breach of contract. However, in the CS context, a material breach by the CS provider (i.e. termination of CS) could mean that a post-mortem individual could not be revived to sue for breach of contract. This could easily be fixed if the contract permitted the patient to assign their rights under the contract to third parties. The real problem arises, however, when the individual in CS materially breaches. This could come about if funding problems emerge in their estate after they enter CS and they are unable to pay the CS provider. In these situations the CS provider would ordinarily be able to stop their performance, but doing so here would be a life or death, or rather future life or death, decision as removing a body from CS would mean it could not be resuscitated. If this is considered murder, then a CS provider would probably be required by law to maintain bodies in CS even if they are not paid.
CS raises a host of legal issues because many of our laws are based on certain, linear conceptions of death. The possibility of reviving a legally dead individual would challenge many of those laws. Whether courts or legislatures will change the laws will likely depend on the future success rate of CS. If it is shown that people can indeed be revived through CS, then this may be a strong factor that courts will consider when weighing changes to current law.
1 See George P. Smith, II, Medical-Legal Aspects of Cryonics: Prospects for Immortality (1983).
2 Alcor Life Extension Foundation, Inc. v. Mitchell, 7 Cal. App. 4th 1287, 1289 (1992).
3 Id. at 1290.
5 The UAGA has been passed in most states. See http://www.anatomicalgiftact.org/DesktopDefault.aspx?tabindex=2&tabid=72.
6 Mitchell, 7 Cal. App. 4th at 1291-92.
7 Id. at 1292.
8 Id. at 1289.
9 Id. at 1293 (“These are, of course, but a few of the presently imaginable conundrums which could arise should Alcor at some future time actually succeed in reviving the currently dead. Nonetheless, we are confident that those persons who will then head our various branches of government will be far wiser than we and entirely capable of resolving such dilemmatic issues without our assistance.”)
10 The Uniform Determination of Death Act was drafted by National Conference of Commissioners on Uniform State Laws and was created in response to advancing life support technologies. The drafters of the act sought to “[Provide] comprehensive bases for determining death in all situations” by incorporating the common law definition of death (“irreversible cessation of circulatory and respiratory functions”) along with a more modern definition (“cessation of all functions of the entire brain, including the brain stem.”) See Uniform Determination of Death Act, available online at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1980s/udda80.htm.
11 See Cal. Health & Safety Code § 7180(a).
12 The case of Terry Schiavo, however, presents a situation where a patient in a persistent vegetative state maintained respiratory functions on her own but was deprived of a feeding tube.
13 Cal. Health & Safety Code § 7150.50(a).
14 In California, post-mortem bodies must be disposed of by “interment, incineration or any other method determined by the state department to protect the public health and safety” after they have been utilized for scientific use. Cal. Health & Safety Code § 7054.4.
15 See Jacobsen v. Marin General Hosp., 963 F.Supp. 866, 869 (N.D. Cal. 1997) (“Although all fifty states have adopted the Uniform Anatomical Gift Act . . . in some form, there is very little case law interpreting its provisions.”).
16 Donaldson v. Lungren, 2 Cal. App. 4th 1614, 1618 (1992).
17 Id. at 1621-22.
18 Id. at 1617, 1622.
19 See Shaver v. Clanton, 26 Cal. App. 4th 568, 572 (1994).
20 See http://www.cryonics.org/documents/CS_Agreement.html.