This article was adapted from a presentation given by me during the 4th Annual Colloquium on the Law of Futuristic Persons, December 10, 2008, at the Florida Space Coast Office of Terasem Movement, Inc. It offers supporting arguments as to why cryonically preserved individuals and their property should be protected. The accompanying PowerPoint presentation is located at my January 12, 2009 Post.
The topic is the Law of Futuristic Persons and their legal status. When discussing this topic, what we need to realize is that, we really don't know the legal status. So what we are really talking about are positions and arguments supporting the legal rights of people in and revived from biostasis.
There have been challenges to people who have wanted to dispose of their assets in a certain way and their desires have not come to fruition. Family members or others raised concerns and actually contested what the deceased wanted to do.
When we talk about legal rights we are in the process of establishing them. As I thought about this topic, William Goldman comes to mind. If you’re not familiar with William Goldman, he is a legendary screen writer. Over the course of time producers and other Hollywood types would say, "Bill, you know as much about Hollywood as anybody, is this project going to be green lighted, is it going to make a couple hundred million dollars?" Goldman was credited with saying, "Nobody knows anything." That concept applies to a number of areas, and it applies to what we're talking about today.
What does that mean to us in the legal world? Well, laws are made through legislation; Congress or a state legislature will pass laws. They're also made through case law, through precedent, and presently we don't have a lot of precedent. We're really here to shape the law, and to guide the law. To develop the law is our opportunity. That is the blessing that we have. Obviously, that's also a curse, because the law can also go in a direction that we don't want. We need to make our own precedent. In making our own precedent, lets discuss four arguments that we can rely on to shape the law. If a case was in front of a judge, the judge would look to other areas of the law for guidance. Although there may be fifty other arguments that are relevant, here are four arguments that can help us.
The first argument is: Upon death people have the right to do certain things. Well, certainly if those rights apply upon death, cryonically-preserved people who are in a transition period should enjoy those same rights or even greater rights.
Just as the legal dead have rights, cryonic people should have the right to pass their assets to beneficiaries of their choice. A decent burial is a fundamental right. Wrongful death statutes protect the legal dead if death is caused by somebody's negligence. So certainly those who are in a transition period should have these same rights, if not greater rights.
The law is to be developed, it's not a slam dunk that courts are going to respect the wishes of the decedent. In fact, there was an American Bar presentation from earlier this year where a lawyer in New York, Gideon Rothchild, summarized what courts have looked at in determining a decedent’s wishes. He pointed out that, often times the family’s wishes and public norms will supersede a decedent's wishes. His comments were in the context of frozen DNA being used posthumously to conceive children, which is an analogous area of the law.
Second argument: Individuals in biostasis should be protected because the law can't be made through 'abstract moralisms'. What is an abstract moralism? The context to understand abstract moralisms dates back to Roe v Wade and the abortion cases and a woman's right to choose. The Supreme Court said that, under the 14th Amendment, there is a privacy right. There is a right that should be determined by the individual. It should not be left up to the state legislature. The state legislature cannot propound abstract moralisms. In other words, certain things are so fundamental, so important, that it's not an elected official who's going to determine what the law provides.
In Planned Parenthood versus Casey, there is a quote that is so important Planned Parenthood was, again, an abortion case involving state legislation in Pennsylvania. The facts aren't as important as the holding. The Court said you had to look to these privacy rights.
The Court said the following, "These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."
That’s powerful language and it really lends itself to what we're suggesting when you look at cryonically-preserved people. This mystery of life and latitude provided to the individual to determine what that means to that individual is not limited to just when life begins but it is also applicable to when life ends. By analogy, borrowing from these right to choose cases and the 14th Amendment, this is helpful to develop this area of the law.
Third argument: Children born from frozen embryos are legal heirs. If that's the case, shouldn't cryonically-preserved people enjoy the same right?
I previously cited Mr. Rothchild. His outline refers to a line of cases that is developing. These cases are parallel to our cases; they are simply ahead of us because the medicine is ahead of us. The courts have concluded that if a child is born from the frozen DNA of a decedent, and it's conceived even with that frozen DNA after the death of the decedent, that that child has the right to inherit.
For example, In Re Martin B., is a recent case by the New York Supreme Court case in '07. It's consistent with a line of cases that are developing in the law that says there is no public policy that prohibits the conception of children with frozen DNA.
I tried to distill the elements of these cases to see how they relate to what we do. If you look at the cases dealing with frozen DNA, there is a genetic relationship between the decedent and the child. There is consent by the decedent to the conception and then the decedent agrees to support the child. So dad dies, his sperm is frozen, after his death it can be impregnated with the woman, and the child is conceived. That child then has the right to inherit.
What does that mean to us? Well, do we have a genetic relationship between the cryonically-preserved person and the revived person? Certainly. The cryonically-preserved person consents to be revived? Well, that's obviously why they are being preserved.
The cryonically-preserved person has arranged for his or her support? That's what we're working on. Some have, maybe some haven't gotten there, but that's another element that can also be taken care of.
Thus, by analogy we're trying to come in on all fours with these cases.
Fourth argument: The shift in the standard for determining death has moved away from the absence of breathing and toward a brain death concept. That started back in the early '80s when it was recommended by a presidential commission that "brain dead" is the way to measure when you are legally dead. There are court cases over the last several years that have supported that notion. It's relatively accepted that brain death is the standard that applies now when someone is legally dead.
What does that mean in the cryonic world? It can be argued that people that are being cryonically preserved maintain a level of brain activity or at least have the opportunity to maintain a level of brain activity that is not otherwise applicable if you're not being cryonically preserved.
Lets explore two different angles to that concept. One comes from our host, Dr. Rothblatt, who has written about the concept of bemes and the idea that you can download thoughts and impressions and pictures and other things. What you end up with is not just a history of yourself but perhaps even your personality and a presence that may then be used when a person is being revived.
There is a second angle to this, and it is more philosophical. The thought is if the standard has shifted over time regarding what constitutes death, shouldn’t there be an evolving standard that recognizes as the medicine and technology develops so too should the standard shift to recognize that people who are being preserved will ultimately be able to come back to life?
In that regard lets go back to the presidential commission in 1981 where they said, "People's attitudes toward death evolve and changes in medical capabilities certainly come to be reflected in public as well as professional circles."
They weren't thinking of cryonics back in 1981, but certainly as they went from a breathing standard to a brain death standard what they talked about back then is applicable now as you look at our area of the law and our area of the medicine and how it continues to develop.
Those are the four arguments, any one of which we can rely on. As the law develops we would certainly be relying on all four and borrowing from all four in order to establish the precedent for why people who are being cryonically preserved enjoy certain rights.
Lets touch on one of the relevant aspects to determine whether children conceived with frozen DNA should be allowed to inherit. As I stated that area of the law can help us. One of the concepts was the ability to support oneself. This takes us back to these wealth preservation trusts and the idea that you can establish a trust that can continue while you're in biostasis and assets will then be available when you are revived.
This is not directly on the topic, but to quickly touch on it, the concept is that there is a fundamental body of law that recognizes dynasty trusts. A number of states now do, so there is nothing unique about that. What we want to do is design a wealth preservation trust for a cryonically-preserved person to mirror the provisions that you would see in a typical dynasty trust.
With that in mind, there may be distributions that would be made annually or at least provide for the possibility of distributions. There could be some charitable distributions. We want to design a "typical" dynasty trust, but certainly the bulk of the assets would be available for you when you are revived.