Leda Mouallem
Life extension raises several possible legal issues in the tort realm, namely pertaining to wrongful death actions, recovery for emotional distress, medical malpractice, and products liability.
Since the process of being cryogenically frozen currently requires that the individual be legally dead it is necessary to look at the variety of ways an individual may come to pass. Naturally, the obvious way is by virtue of nature taking its course either through age, illness, or disease. However, there are many situations where accidents or crimes occur that result in the ending of an individual’s life. Feasibly then, an individual who is signed up to be frozen upon death may be killed by another person either intentionally or accidentally. In the realm of tort law, wrongful death actions are usually brought by the surviving spouse or family member of an individual who are often victims of crimes or accidents. At common law, no action could be brought for wrongfully causing the death of a human being, but today every American jurisdiction has some sort of wrongful death statutory remedy. Most jurisdictions statute provide remedy not for the decedant, but for the survivor’s of the decedent. Any claim the victim would have had must be maintained in a separate action, but are generally prosecuted concurrently. The measure of damages under these statutes is the pecuniary loss suffered by the surviving relatives including companionship, support, services, and contributions that they would have received had the victim not have been killed. Although to date no human being has been “brought back to life” after being frozen, it may happen someday. In that case, the legal issues involving wrongful death actions become convoluted because the victim while technically killed at some point, will ultimately become alive again and be restored to their families.
The process of being cryogenically frozen is a detailed one and often involves doctors. Once the body has been declared legally dead, it is necessary that soon thereafter the body begin the freezing process. Often doctor’s are the first to handle the deceased body and patients who are scheduled to be frozen often leave instructions for their doctors as to the exact process to follow. The possibility of legal malpractice claims may arise if the doctor, technically still caring for the patient per written instructions, somehow fails to perform his/her tasks and thus the opportunity for the patient to be preserved and brought to life at some later point passes. In medical malpractice situations, the duty owed by the doctor to the patient is one of care customarily exercised by other members of the medical profession in good standing in the same or similar community. Expert testimony is required on the plaintiff’s behalf to show that the doctor breached this duty. The exception to the doctor’s duty is called informed consent of the plaintiff regarding medical treatment. This exception waives any liability on the part of the doctor. Therefore the argument could be made that because the plaintiff desired to be frozen and provided the doctor with specific instructions, the plaintiff was informed and consented to the treatment and anything that may go wrong.
Due to the magnitude of products used in the cryogenic freezing process (chemicals used and various storage containers), there exists a possibility of product liability issues. Of course the injury in this case would be absolute death. Under this theory of liability, all participants in the marketing of the product who cause the product to enter the stream of commerce or pass the product along the stream of commerce are strictly liable (meaning there are no possible defenses or excuses). The majority of courts and the Restatement 2d of torts say that a plaintiff must prove the defect in the product that caused the plaintiff’s injury was something other than what a reasonable person would expect in normal use. Other courts and California follow the view that the plaintiff must prove the product did not perform as safely as an ordinary consumer would have expected when the product is used in an intended or reasonably foreseeable manner. However the plaintiff can only rely on this theory if the consumer knew what to expect from the product.
Legal issues involving criminal law may include murder and manslaughter charges. As discussed earlier, an individual does not always die from age, illness or disease, but may instead be the victim of a crime. Under criminal theories of liability for another person’s death there are different categories including murder and manslaughter. Murder charges(usually categorized as murder 1 and murder 2) are reserved for killings that involve malicious intent and manslaughter charges (usually categorized as voluntary and involuntary) are those that have no malice requirement and may be either intentional or unintentional.
Under California and majority law, manslaughter is the lesser offense and the perpetrator is punished to a lesser degree than either of he murder charges. In California, the death penalty is applicable to murder charges and life imprisonment is a common punishment for manslaughter. Legal issues involving the prosecution and punishment of individuals who kill others create complexities when and if human life extension is successfully proven because an individual who is unlawfully killed may simply be brought back to life.
The life extension process of cryogenic freezing usually involves the making of a contract between the individual seeking to be cryogenically frozen, and the “freezing” company and thus there are legal implications governed by contract law. Under the general theory of contract law, a contract is made when there is effective offer and acceptance by both of the contracting parties. A contract can be either written or verbal, express or implied. The parties must intend to enter into the contract, communicate the offer and acceptance and must agree to the terms of the contract. If any of these elements are missing the contract may not be valid. Grounds upon which a contract can be declared invalid include misunderstanding, mistake, misrepresentation, a violation of the Statute of Frauds, duress, and legal incapacity. A contract can be terminated by death if the death occurs between making the offer and acceptance of the offer. A contracting party, or (certain) intended third party beneficiaries, may sue for breach of contract when there is a failure to perform a contractual duty. Remedies for breach of contract may include compensatory damages (money paid out or lost through unrealized benefit) such as restitution damages (value of the benefit returned), reliance damages (returning the parties to position before contract) and expectation damages (awarding prospect of gain from the contract). Non-compensatory damages (nominal/symbolic or punitive damages) are also available.
There are constitutional implications associated with life extension. Not only for the individual seeking life extension, but also for the whole of society as well. Constitutional principals found in the First Amendment afford individuals freedom of association and expression thus individuals wishing to belong to organizations that support and provide cryogenic freezing services is permitted. Likewise, the Fourteenth Amendment secures that each citizen is afforded certain privileges and immunities that cannot be trampled on by the state government such as the freedom to contract. From this legal statutory authority individuals are free to do as they wish (albeit with limitations for certain behavior).
There is an interesting constitutional issue raised however for the rest of society concerning rights, freedoms, and privileges. If a certain individual—perhaps an entertainer, scientist, Congressman, even the President were to die, become cryogenically frozen, and then unfrozen and restored to life there may be certain implications as to that persons function in the whole of society once restored. If an entertainer or other artist has certain copyrights or trademarks on material, it would become necessary to determine whether those rights would continue during the freezing process and beyond. Currently, under Title 17 of the U. S. Code, the duration on any copyrighted material is the life of the author plus seventy years. Copyrights are subject to renewal for a term of sixty-seven years. If there is no record of the author’s death either 95 years from the date of publication or 120 years from creation (whichever occurs first), and the person seeking a new copyright has made a good faith effort to investigate, the author will be presumed dead and no copyright infringement claims can be brought.
Similarly, many scientists and doctors patent their scientific processes or inventions. Under Title 35 of the U. S. Code, patents have a seventeen-year duration which upon expiring can only be renewed if the FDA is investigating the product. The constitutional rights of the cryogenically frozen individual and others in society to freedom of speech and expression may become adverse to each other if there are no discernable limits on copyrights or patents.
Additionally, Article II and the Twelfth Amendment give the people the power to elect the President, Vice President and members of Congress. The right to vote is embodied in the Fifteenth Amendment and (for women) Nineteenth Amendment. These election provisions provide the specific terms the offices are permitted to hold (two consecutive terms of four years for President and V. P. and six years for Senators. The terms of these officers are immediately terminated upon death. These constitutional provisions may be technically violated if the freezing process becomes a viable option for restoring individuals to life.
By: Katherine Bishop
Assisted Suicide
homas Donaldson sought a declaration in California court that he had a constitutional right to cryonic suspension before his legal death. He also sought an injunction against the criminal prosecution of the people who would participate in his suspension. The court ruled that there was no constitutional right to assisted suicide and the act of assisting or encouraging another's suicide was a felony. Donaldson had brain cancer and wanted to be frozen before the tumor destroyed too much of his memory and identity before ultimately killing him. By the time he died from natural causes the point of cryonic suspension would have been moot because his tumor would have already destroyed his brain, which is what cryonics seeks to preserve.
The act of freezing a person before they die of natural causes will lead to legal death, which is why Donaldson sought immunity for the people who would cryonically suspend him.The federal government and some states disagree on whether or not assisted suicide is in fact a crime. It is possible that in a state like Oregon if a person were terminally ill and went ahead with premortem cryonic preservation that the people who assisted in his suspension would not be subject to state prosecution.
Another option for a terminally ill person who wanted to be suspended before their disease caused too much damage is to commit suicide and then to be suspended, instead of the suspension itself causing the legal death. Immediately after death the suspension process must begin before too much cell damage is caused. An interesting question is whether the people doing the cryonic suspension would be criminally prosecuted for assisted suicide if the deceased had given them a heads up before he committed suicide so that they could be immediately dispatched. The point of cryonic suspension is of course to be reanimated at some point in the future, so if the formerly deceased person were brought back to life it would change the way the law looks at assisted suicide.
Death Certificate
Having been issued a death certificate if a person were reanimated in the future they would be legally dead. Today when a person undergoes a sex change operation the government refuses to change the gender that is listed on their birth certificates, so the person remains legally the gender of their birth. Perhaps then a person who is reanimated would remain legally deceased, at least until several successful reanimations have been done to prompt a change in the law. Or the law on a person brought back from suspension could be closer to that of a person who is legally declared dead after they were missing for the statutory time, generally seven years. Upon returning the formerly missing person can petition for the declaration of legal death to be set aside.
Autopsy
One of the concerns for people who intend to undergo cryonic suspension is that an autopsy might be required if they die under suspicious circumstances. An autopsy could ruin their chances at a successful suspension because of the delay in beginning the freezing process. Most states give coroners or medical examiners great authority to conduct autopsies and frequently require that they are performed. At least five states (CA, NJ, NY, OH, and RI) have a law that allows people the right to prevent an autopsy under most circumstances if they have signed a certificate declaring that an autopsy is against their religious beliefs. Under California law, a coroner may still perform an autopsy despite the certificate if he has a reasonable suspicion that the death was the result of a criminal act or a contagious disease constituting a public health hazard. It is also possible for the coroner to petition the court to set aside the certificate in other circumstances. This could lead to a legal battle between the government's right to determine a cause of death or prosecute a crime, and the deceased's right to cryonic suspension.
Burial Certificate
In most states human remains must be disposed of as provided by the legislature and then only after receiving a permit for disposition. In California, human remains may only be interred in a cemetery, cremated, buried at sea, or donated for scientific purposes. Only after litigation was it decided that the California Department of Health Services could not deny disposition permits to cryonic suspension companies. They are permitted to take possession of human remains under the legal fiction that they are taking them for scientific purposes. This example illustrates the problem that could be faced by many people who intend undergo cryonic suspension. If state legislatures do not explicitly address cryonic suspension then cryonicists may have no legal standing to handle or store human remains if the issuing authority of disposition permits objects. This could lead to uncertainty among those wishing to be frozen and may ultimately require that they relocate to states that have express laws or precedents allowing disposition permits to be issued to cryonic suspension companies.
Suspension Company Dissolves
Robert Nelson set up one of the first cryonics organizations, the Cryonics Society of California, in the 1960s. He eventually ran out of money and could no longer maintain his frozen clients. Nine people in cryonic suspension were allowed to thaw and decompose. The families of his clients sued Nelson for money damages and won. If a cryonic suspension company goes bankrupt in the future civil damages will not be enough to accomplish the wishes of those in suspension. Relatives of those in suspension may try to force the company to honor the commitments that were made to those in cryonic suspension.
Some cryonics companies, such as Alcor, set aside funds to maintain their clients in case the company dissolves. Alcor's policy is to discuss the options and the best use of the funds to maintain their clients at the point they are forced to dissolve. Any remaining living relatives of the suspended clients may have their own ideas as to what should be done to accomplish their relative's wishes. The closest law on the subject may be that covering the exhuming of bodies interred in a cemetery. Courts frown on disturbing the peaceful internment of the dead and will only do so upon a showing of good and substantial reasons for doing so. If a cryonic suspension company dissolved it is possible that courts would view their cryonic suspension chambers as the equivalent of internment in the earth. That could make it difficult to transport the chambers to another company that was willing to continue maintenance. It could allow the family members to force the company to continue maintaining them at the facility where they were first stored. The law could also be helpful in forcing the corporation to maintain the clients in deep freeze because removing them could be the equivalent of exhumation which would require a court order, and bankruptcy might not qualify as a good and substantial enough reason.
Legal Status
If a person once legally dead were brought back to life after many years their legal status would be ambiguous. They might be able to petition for their death certificate to be put aside in the same fashion as a person presumed dead would be able to do. Or the law could consider them to be a new person with no legal relation to their past identity and issue a new birth certificate. If the reanimated person continued their previous legal identity then it could raise a variety of questions. If the person was legally married at the time of death and their former spouse had remarried and were still living there would be some question as to who was legally married. As the law presumes people do not intend to be polygamous the courts would likely view the former marriage as invalid. The reanimated person could also face suit by former creditors, either those creditors living who are in privity or with those creditors who had also undergone cryonic suspension and were reanimated.
There would also be a question of whether they should resume complying with any legal obligations. The reanimated person may still owe a debt to society in the form of jail time not completed, charges pending, or they could have undergone suspension while on parole or probation. It is also unclear whether a death sentence would preclude the right to undergo cryonic suspension.
Patents
If nanotechnology or another technology made it possible to successfully reanimate people in the future the inventors would likely patent the technology or keep it as a trade secret. If a cryonic suspension company held such technology their rival would likely sue for access to the information. Patent or trade secret law would be under attack because it would preclude bringing people back to life if a different company had frozen them.
Wrongful Reanimation
There is no way of knowing at present how successful reanimation may be. Even if it is one day perfected it could cause severe damage to the first people it is tried on. It is also possible that previous forms of cryonic suspension will be so primitive that reanimation will always lead to certain defects that cannot be repaired. If a person reanimated has severe defects they may sue the cryonics company for wrongful reanimation. This could be analogous to the claims for wrongful life. There are strong public policy reasons not to put a negative value on human life, and most jurisdictions hold that life no matter what the condition is better than no life. Damages may be barred or limited. A medical malpractice claim may be more successful, but it would be very difficult to prove because the procedure was so experimental that there were no known successful standards of operation.
Insurance
The insurance company that paid out on the policy on the reanimated person when they died might try to recoup the money paid out when that person died. They would likely be barred by the relevant statute of limitations, most likely covering fraud.
Wills
If a reanimated person retained their former legal identity they may try to reclaim any property that was left, or would have passed through intestacy, to them while they were suspended. They could even try to regain their original property that passed to others after their death, if it were still possible to trace it. People planning on undergoing suspension may try to leave their property to themselves as their own heir by naming a trustee to look after it, but the rule against perpetuities would likely prevent a reanimated person from claiming the property by the time technology can reanimate them.
Introduction:
Alcor currently requires that a client must meet the legal definition of death before undergoing cryogenic preservation. For the most part, most states have adopted the definition of death provided by the Uniform Determination of Death Act. Further, most states make assisted suicide and euthanasia of humans illegal. One exception is Oregon, which has enacted its Death with Dignity Act.
But what happens when a cryogenically preserved human is revived, but certain elements of what used to be part of that individual are missing? Is that individual still the same person?
Uniform Determination of Death Act (UDDA):
The UDDA was born of the need to address human organ donation shortages in the U.S. A uniform definition of death across states would better enable organ procurement teams to know when the time was appropriate to remove organs from a deceased patient. The UDDA provides "An individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards." Most states have adopted this definition of death either by statute or appellate court decision. (Uniform Anatomical Gift Act 1987). Such states have adopted this definition of death not only for organ procurement purposes, but for all situations involving the assessment of death.
The language of UDDA leaves much of the definition up to medical standards. This is where inconsistencies may arise. Justice Brennan and Justice Marshall, in the famous dissenting opinion of Cruzan v. Director, Missouri Dept. of Health (1990), stated "Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity." As life-sustaining technology gets better, this "twilight zone" will get bigger.
Oregon Death with Dignity Act
Alcor currently follows the UDDA definition of death, perhaps to avoid liability or just for convenience sake. But perhaps Alcor will change this practice if social norms, followed by legal enactment, follow Oregon's Death with Dignity Act.
The Act provides that "An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with this Act."
Provisions are further made for physician guidelines and procedures to ensure the safety of the patient and that no undue influence or pressure is put upon the patient in making their decision to end their life. The Act also provides "Nothing in this Act shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with this Act shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law." Such language may serve to shield a physician from criminal or tort suits brought by family members or loved ones.
The Act provides for the effects of a person's decision to end their life on wills, contracts, other statutes, insurance policies, and annuity policies.
See http://www.rights.org/deathnet/ergo_orlaw.html.
Suicide?
If Dying with Dignity gains legal acceptance and is enacted in most/all states, then the steps involved in cryogenic preservation can be commenced immediately after the lethal medications have sufficiently affected the patient. Eventually, the step where the patient must first take lethal doses of medication will be cut out, as it harms the cells and lessens the chances of revival. Instead, a general anesthetic is administered to the patient just before commencement of cryogenic preservation. A conservative legal community may say the person has committed suicide. A more liberal legal community may say that a person that cannot be revived is dead, and has thus committed suicide. Either interpretation will have implications on life insurance payouts.
The US Supreme Court has said "Commercial insurance policies have traditionally relied upon fixed, prophylactic rules to protect against abuses which could expand liability beyond the risks which are within the general concept of its coverage. For example, life insurance policies often cover deaths by suicide, but not those suicides which were contemplated when the policy was purchased. Frequently the method chosen to contain liability within these conceptual bounds is a strict rule that deaths by suicide are covered if, and only if, they occur some fixed period of time after the policy is issued." Weinberger v. Salfi, 422 U.S. 749,776 (1975). There will be the argument by insurance companies that either the individual is not dead, or they will have to go the traditional route and show the individual contemplated the "suicide" aka cryogenic preservation before purchasing the life insurance plan. Those who stand to benefit from the payout will argue the cryogenically frozen individual is indeed dead.
What makes us human?
The USCS (United States Code Serviced) defines a person as an "individual" among other things, such as corporations, that we are not concerned with here. An "individual" has been defined in terms of tax obligations, bankruptcy statutes, labor and employment laws, public health and welfare, etc. But laws do not attempt to define the individual at a more philosophical level, likely because we have not yet encountered a situation where the "essence" of an individual has been transformed or transferred. Until the legal community can reach a consensus on just what makes a human a human, and more importantly what makes an individual an individual, applications of current law to new situations may prove incongruous and inconsistent. (For various on viewpoints on what makes us human, visit Dr. Nancey Murphy's site entitled "What Makes Us Human?" at http://www.counterbalance.net/quest/human-body.html.
Current law would be hard pressed to say that a person who received an organ transplant is only 90% himself, and 10% someone else. That transplant recipient is still 100% himself. Even if he had all his organs and all his limbs replaced, he would still be himself. Will the law impose a limit to how much of an individual's physical body can be exchanged and the person will still be recognized as the same person? Another related issue is loss of memory or consciousness. Current law is more readily available on this topic. The current state of law recognizes that a person with amnesia, regardless of how permanent or how extensive, is still the same person. A person, no matter how unconscious or in a vegetative state, is still the same person. What current law does not deal with is if the consciousness or memories are transferred out of the original medium (physical body) to another medium (another body or even a computer).