CRYONIC SUSPENSION

 

Caselaw: Given the present state of the art and its contingency on future technical and legislative developments, the American caselaw in this area is rather sparse.  However, two cases of particular interest include the following: 

 

Alcor Life Extension Foundation, Inc. v. Mitchell 7 Cal.App.4th 1287, 9 Cal.Rptr.2d 572 (1992)

                  The situation arose when Department of Health Services (DHS) denied the issuance of death certificates and disposition permits to Alcor members who have been placed in cryonic suspension.  Under Health and Safety Code §10376, there are three legally permissible ways of dealing with human remains for purposes of a disposition permit: 1) interment in a cemetery, 2) cremation, and 3) burial at sea.  The Uniform Anatomical Gift Act legitimizes “scientific use” as another method of treating human remains provided an anatomical gift of all or part of human body is made to either a hospital, physician, surgeon, or procurement organization for limited purposes or to an accredited medical/dental school or university/college, or to a designated individual for tranplantation or therapy needed by that individual.  Alcor has been operating under the Uniform Anatomical Gift Act (see Health and Safety Code § 7150 et seq.) for quite some time until the DHS suddenly intervened in 1988 and rejected both cryonic suspension as a form of “scientific use” and Alcor as a procurement organization.  The Court affirmed the lower court’s enjoinment of DHS from interfering with death registration or disposition permit issuance of people who have named Alcor as donee under the Uniform Anatomical Gift Act until DHS has established mechanisms for obtaining a license as a procurement organization.  In absence of the injunction, Alcor’s current business of keeping bodies at its facility would have exposed it to criminal liability and subjected it to prosecution for multiple misdemeanors.  Both the Trial court and Appellate court refrained from basing its decision on the soundness of cryonic technology and instead reserved such issues for legislative and administrative discretion. 

 

 

Donaldson v. Lungren 2 Cal.App.4th 1614, 4 Cal.Rptr.2d 59 (1992)

                  Donaldson, a mathematician and computer software scientist, was unfortunately diagnosed with a malignant brain tumor, i.e. grade 2 astrocytoma, and sought hope in the form of a pre-mortem cryonic suspension.  In this endeavor, he brought an action for declaratory judgment affirming his right to be cryonically suspended before natural death and injunctive relief for Mondragon (Alcor President and Director) and others involved in the procedure against criminal prosecution.  Donaldson also sought an injunction against the performance of an autopsy on his body after death. 

 

To understand the facts of this case, it is important to note that CA Gov. Code §27491, coupled with CA Gov. Code §27491.2 and CA Health & Safety Code §7102, requires a coroner to inquire into suicide and homicide-related deaths and permits the same to perform an autopsy on the remains.  While cryonic technology has yet to be validated, the multiple incisions and injury inflicted on the body during an autopsy certainly diminish the chance of a functional body upon revival.  (see this link for an autopsy image: http://www.cryonics-europe.org/autopsychoice/morg08.jpg)  To compound the problem, the success of cryopreservation largely hinges on keeping the body at a low temperature and prepping it for freezing as soon as possible (generally within 4 minutes).  For Alcor’s emergency protocol: http://www.alcor.org/Library/pdfs/signup-EmergencyStandbyProvisions.pdf.  Needless to say, an autopsy would introduce much delay and greatly affect the quality of preservation.  In addition, Donaldson is particularly insistent on premortem cryonic suspension because the tumor would have virtually engulfed his brain should he wait for death to come naturally.  Reanimation of his body without an intact brain would certainly undermine Donaldson’s objective.        

 

In support of his position, Donaldson touts his constitutional right to privacy and self-determination as derived from the Fourteenth Amendment and Art. I, section 1 of the CA Constitution.  Though the Court recognizes a patient’s right to medical self-determination, it distinguishes Donaldson’s case from scenarios involving refusal of medical treatment by construing cryonic suspension as a self-infliction of deadly harm.  The Court also believes that state interests such as the preservation of human life, prevention of suicide, protection of innocent 3rd parties (e.g. children) and maintenance of ethical integrity of the medical profession outweigh Donaldson’s interests in this matter.  It seems fair to say that the Court’s decision was influenced by its uncertainty in the technology.  If there had been proof that patients can be successfully and safely reanimated after cryonic preservation, consideration of many aforementioned factors would be moot.  The Court did explicitly assert that Donaldson is free to take his own life since there are no criminal statutes against suicide.  This dictum does technically leave open a theoretical avenue by which individuals could undergo pre-mortem cryonic suspension; this would be possible if the procedure could be streamlined and automated.  However, the Court’s refusal to grant an injunction against performance of an autopsy on Donaldson’s body (should he choose to undergo the procedure It perceives as suicide) creates another hurdle for proponents of this procedure.  

 

In rendering its judgment, the Court reasoned that the procedure of cryogenic suspension would result in “irreversible cessation of circulatory and respiratory function and irreversible cessation of all brain function,” which equates death pursuant to CA Health and Safety Code §7180.  Therefore, Mondragon and his team, in executing this procedure, would have either committed homicide or aided and advised a suicide, actions for which they can be criminally prosecuted. 

 

Anticipated Issues

Since the ultimate success of cryonic suspension in preserving people for subsequent revival would redefine society’s perception of death, new rules must be extrapolated from existing, related legal frameworks to properly deal with unprecedented issues and dilemmas.  For instance, the freedom of the spouse of a cryonically suspended person to obtain a divorce and remarry can be analogized to cases involving the spouse of a comatose patient.  For the story behind a widely-publicized case, see http://www.cbsnews.com/stories/2003/10/21/health/main579083.shtml  

 

§          Should we set aside the existing Rule Against Perpetuities in will construction so that individuals undergoing cryonic suspension could provide for themselves upon their revival? 

§          If a person undergoing cryonic suspension were intestate, how should intestacy laws be reformed such that the individual does not become a burden on the state upon his revival?

 

The embittered struggle amongst the children of baseball legend Ted Williams over his alleged wish to be cryogenically preserved after his death creates an interesting dilemma if revival of such individuals became possible. 

§          What if Ted Williams were reanimated to his own horror and dismay because he in fact did not wish to be cryopreserved in the fact place? 

§          Does he have a claim for “wrongful living” or “wrongful prolongation of life”? 

See Wright v. Johns Hopkins Health Systems Corporation 353 Md. 568, 728 A. 2d 166 involving an AIDS patient whose estate brought a suit for wrongful prolongation of life against doctors who resuscitated him from cardiac arrest. 

 

See Estate of Taylor v. Muncie Medical Investors 727 N.E.2d 466 involving an elderly woman whose estate brought a claim for wrongful prolongation of life against nursing home which administered Jevity, a water-based caloric supplement, to the comatose and paralyzed patient through intravenous line. 

   

§          How about a claim for medical malpractice?

 

Currently, the legal action for “wrongful living” is distinct from that of “wrongful prolongation of life.”  Wrongful living claims have been brought derivatively by parents of children naturally born with severe defects whereas wrongful prolongation of life suits often involve terminally ill patients whose wish not to be resuscitated has been overridden by hospital officials.  The difference between these two claims as applied to people revived from cryonic preservation would largely depend on how death is defined.  For instance, if cryonic preservation is perceived merely as a stage in life, then a claim for “wrongful prolongation of life” would be most appropriate.  If science eventually shows that people are not being brought back from the dead, that they are merely in biological "stasis" during cryopreservation,, then “wrongful living” may be the proper claim to pursue.  This is actually more than a play on semantics; the inquiry may depend significantly on how science defines the boundaries between life and death.  In response to the medical malpractice issue, see Glasner v. Howick 1997 WL 677955 (Tenn.Ct.App.) opinion which states that “resuscitation from the dead is not negligence within purview of medical malpractice law.”  The Glasner case involves the resuscitation of a stillborn baby named Cody, whose parents brought a medical malpractice against the obstetricians involved. 

 

Tom Verducci, a journalist for Sports Illustrated, reported that Ted Williams’ head was cracked as many as ten times due to fluctuating temperatures in the Alcor storage tank.  http://sportsillustrated.cnn.com/baseball/news/2003/08/12/williams_si/ 

§          Assuming we have the technology to revive people from cryonic suspension (and Williams’ head had not been severed from his body) and Williams would have been successfully reanimated but for those head injuries, could Williams’ survivors bring a suit for wrongful death?

§           How about a claim for breach of bailment? 

See Frisina v. Women and Infants Hospital of Rhode Island, Lamontagne v. Women and Infants Hospital of Rhode Island, and Doyle v. Women and Infants Hospital of Rhode Island 2002 WL 1288784 (R.I.Super.) involving three couples whose preembryos were either lost or destroyed by the Endocrinology-Fertility Unit of the hospital in the course of receiving IVF treatment; all three plaintiffs made claims for recovery under three theories: medical malpractice, bailment, and breach of contract. 

 

Breach of bailment claims have been brought by disgruntled couples whose pre-embryos were accidentally destroyed during their storage in preparation for IVF procedures. 

 

§          Should Williams’ be perceived by the law as a person or property during cryopreservation?  If he is perceived as a person under the law, it is conceivable for the courts to assign successive conservators to manage his assets during his cryonic suspension. 

 

 

Current Service Providers:

Alcor Life Extension Foundation http://www.alcor.org/

American Cryonics Society http://www.alcor.org/

Cryocare Foundation http://www.cryocare.org/index.cgi (inactive but still holds 2 human patients)

Cryonics Institute http://www.cryonics.org/

Suspended Animation, Inc. http://www.suspendedanimationinc.com/

Transtime http://www.transtime.com/