Tag: Cryonics

Legal Protection of Cryonics Patients, Part 2

This article continues my survey of some of the various forms of legal protection for cryonics patients.  The previous article examined laws that directly affect what happens to a person’s body after legal death, both in the period immediately after declaration of legal death, and indefinitely thereafter.  We saw that the amount of prospective autonomy a person is permitted in this regard can vary significantly from jurisdiction to jurisdiction, with more or less consideration afforded to the wishes of the person’s next of kin, religious beliefs, societal norms and other public interests.  Two other legal structures which can and are used by cryonicists to promote the success and timeliness of cryopreservation, maintenance, and resuscitation are wills and trusts.

As before, this is a broad survey, with references to specific laws for explanatory purposes.  Given the context, it does not go too far to say that for your own safety, you must not rely on the following analysis as legal advice, and should instead consult an advisor licensed to practice in your jurisdiction.

Wills

While a person’s instructions regarding disposition of their human remains may not need to appear in their will in order to be enforceable (in those jurisdictions where such instructions are enforceable), the will’s primary function of distributing the deceased’s property can also be used to promote a cryonics patient’s interest in a timely cryopreservation and revival.

One option that should not be ignored on account of its simplicity, is that a cryonics patient can make gifts through their will to their long-term care provider, cryonics advocacy organizations, and/or relevant research organizations.  However, these gifts can only help the individual patient if they are successfully cryopreserved in the first place, and a cryonicist can use their will to promote that crucial objective as well.  In her article, “How to Protect Your Cryonics Arrangements from Interference by Third Parties”, Rebecca Lively discusses the use of “no contest” clauses in wills as financial dis-incentives to interference by next-of-kin.

“No contest” clauses are also known as in terrorem[1] clauses, or forfeiture clauses – but in terms of will construction, these clauses are actually conditional gifts, that is to say, gifts that are conditional on certain behaviour.  In the usual scenario, the trigger is contesting the will in some way: for example, applying to a court for a declaration that the will is invalid because the will-maker didn’t observe the proper formalities, or wasn’t competent to make a will at the time of its execution, etc.  A very simple forfeiture clause might read as follows: “I leave $50,000 to Mary unless she contests the validity of this Will or any part of it, in which case said $50,000 shall instead go to the Society for the Prevention of Cruelty to Animals.”  If that clause was in a cryonicist’s will, which also contained his/her consent to body donation and/or instructions regarding disposition of human remains[2] (or incorporated those directions by reference to documents outside the will[3]), then contesting the will or the validity of the consent or instruction would trigger the condition and the gift to Mary would lapse and go to the SPCA instead.  However, there are plenty of ways that next-of-kin can interfere with prompt stabilization and cryopreservation without making legal contest so, as Lively suggests, it may be wise to draft the triggering condition to include other forms of interference.  Of course, the difficulty with going beyond the categories courts are familiar with is the risk that, if challenged, a creative condition might be deemed void for uncertainty.  For instance, what quantum of delay in contacting a patient’s cryonics organization constitutes “interference”?  The answer to this question will vary by circumstance.  No doubt for this very reason, Lively suggests drafting such a clause to provide for “inheritance on a sliding scale based on the amount of time which passes between your legal death and your cryopreservation”[4], where, presumably, the entire estate goes to charity/cryonics organizations if the will-maker is not cryopreserved at all.  However, given the many factors that can contribute to delay or non-preservation over which the beneficiaries have little to no control, that kind of inflexible forfeiture clause might come across as unfair and have the undesirable effect of promoting legal interference with the patient’s will in circumstances that are already sub-optimal for other reasons.  A better alternative might be to draft a forfeiture clause that is triggered by intentional interference, the presence of which (whether by act or omission/delay) is to be decided by an expert delegate with no direct interest in the matter, with at least partial reference to specific criteria described in the will.[5]

The degree and requirements of enforceability of forfeiture clauses vary considerably from place to place.  One jurisdiction might require a “gift over” to a specific beneficiary (like the example above)[6], while another might hold valid a forfeiture clause where the gift simply lapses into the residue of the estate.[7]  As Rebecca Lively points out, forfeiture clauses are not allowed at all in Florida and Indiana[8], and in many jurisdictions where they are permitted, they will nevertheless not be enforced against beneficiaries who contest the will with “probable cause” (though this should exclude contests founded solely on hostility towards a deceased’s cryonics arrangements). Furthermore, if the will is contested successfully, and declared invalid, then the forfeiture clause goes along with the rest of it, and the next-of-kin will collect as per the jurisdiction’s intestate succession regime.  Finally, forfeiture clauses will be held void or unenforceable to the extent that they offend public policy.  For instance, some jurisdictions permit applications by a surviving spouse and/or children to “vary” a will that does not make adequate provision for them in the circumstances.[9] Strictly speaking, these support applications are not “contesting” the will, but in any case, a forfeiture clause that was drafted with the intent of foreclosing such applications may be held to be against public policy, and thus void.[10]

Support applications are not the only means whereby next-of-kin can avoid, or partly avoid the sting of a forfeiture clause.  Oregon (and thirty-nine other US states) allows a surviving spouse to opt for an “elective share” in lieu of what the deceased’s will gives them (or, presumably, doesn’t give them).[11]  The right to make this election can be waived by written agreement[12], so it stands to reason that a forfeiture clause written to exclude from the estate any person who interfered with the will-maker’s cryonics arrangements, would be declared void to the extent that it attempts to cut off an interfering spouse’s statutory elective share.  Thus, even if a spouse’s actions trigger a forfeiture provision pertaining to a specific gift to them in the will, they will still be able to elect to receive this mandated share in the deceased’s estate.

Ten of the other states operate instead on a “community property” system[13] which, generally described, means that any earnings of either spouse or partner after marriage or registration of domestic partnership becomes “community property”, as does any property acquired with such earnings or with other money expressly or impliedly designated as “community funds”.[14] In Washington, a surviving spouse automatically gets half of all community property[15]. This cannot be avoided by will[16], nor does the statute provide for waiving this right.

So what’s the moral here?  Well, depending on where a cryonicist lives, and whether he/she is married or partnered and/or has children, the use of forfeiture clauses in a will to disincentivize interference with cryonics arrangements requires not just that those special next-of-kin are given “something substantial” to ensure their abidance (as Lively suggests), but that they are given something substantial above and beyond what they are entitled to under any statutory claims they can make which either (a) avoid the effects of the forfeiture clause, or (b) don’t trigger it in the first place.  A further difficulty, for those cryonicists living in jurisdictions with support order provisions, is that the size of such an order is based on consideration of the circumstances of the surviving spouse and/or children, the size of the estate, and non-specific statutory language like “necessary and reasonable”[17], or “adequate, just, and equitable”[18], so it is impossible to know on the face of the statute just how much is enough.  In many cases, the utility of forfeiture clauses as legal protection from interference will be greater for cryonicists who do not have living spouses or children, which is unfortunate given that those particular family members often pose the biggest threat.[19]

As a final note, wills may be used to transfer assets into a patient care trust or personal revival trust, which will be examined in the next section.  However, such funds would be better insulated from the estate if they were transferred during the cryonicist’s (first) lifetime.

Trusts

The basic premise of trusts is that legal ownership of property and the right to “enjoy” (i.e. benefit from) property can be separated, the former belonging to one person or group of persons (trustees), and the latter belonging to another person or group of persons (beneficiaries).  The duties of a trustee towards the beneficiary’s interests are more onerous than the duties of contracting parties, so trusts are often used to protect and provide for vulnerable persons, like minor children and spendthrift relatives.  For this reason, one would expect trusts to play a role in the legal protection of cryonicists, and indeed they do.  The two most prominent examples are patient care trusts and personal revival trusts.

(i) Patient Care Trusts

Patient care trusts promote the maintenance and revival of cryonics patients in two important ways.  First, transferring legal ownership of the assets provided to fund those objectives to trustees protects the assets from third-party litigants.  Second, patient care trusts protect those same funds from misuse by the cryonics organization itself and misappropriation by its directors or employees, and even the organization’s dissolution.

The most intuitive way of accomplishing these objectives would be to execute a trust under which present and future patients were beneficiaries.  However, because cryonics patients are dead, legally speaking, they have no legal personality and cannot be the beneficiaries of a trust.  Hence, while the terms of the Alcor Patient Care Trust (“APCT”) do state that Alcor is “acting on behalf of the Patients in biostasis”, Alcor is designated the sole legal beneficiary.[20]  Protection against third-party litigants is effected through the magic words, “[t]he interests of the beneficiary in principal or income shall not be subject to the claims of any creditor or to legal process, and may not be voluntarily or involuntarily alienated or encumbered”[21], together with the sections of the Arizona Trust Code upholding the validity of such provisions.[22]

The APCT’s ability to protect patient care funds from misuse, misappropriation, or potential dissolution of the organization ultimately boils down to whether (or how easily) Alcor, as the sole legal beneficiary, can simply terminate the trust and reclaim legal ownership of the funds.  The only termination scenario contemplated by the APCT (wherein Alcor still exists[23]), is if all the patients are revived and reintroduced to society.  All of the Arizona Trust Code provisions addressing modification or termination of charitable purpose trusts (like the APCT[24]) require that the court hearing the application consider whether modification or termination is consistent with the purposes of the trust and, if the trust is terminated, that the trust property be distributed by the trustees in a manner consistent with the purposes of the trust.[25] Practically speaking, it would be very difficult for Alcor to appropriate the patient care trust funds for any purpose other than patient care.

The APCT was established in 1997 and became irrevocable in 1999. The Cryonics Institute (“CI”) established an Endowment Care Trust Fund in 2004, as part of its agreement with Michigan’s Department of Energy, Labour, and Economic Growth to become licensed and regulated as a cemetery.  According to the conditions of licensure, “[t]hese funds will be set aside for maintenance, which shall include liquid nitrogen storage of existing CI patients.”[26]  Obviously the scope of this trust is not as ambitious as the APCT (nor was it intended to be), but it does protect at least some of the assets earmarked for patient care from misuse or misappropriation.[27]

(ii) Personal Revival Trusts

In his article, “Personal Revival Trusts: If You Can’t Take It with You, Can You Come Back To Get It?”, Igor Levenberg points out that for all the benefits of patient care trusts, “those who are revived will eventually have to provide for their own care.”[28]  Patient care trusts provide legal protection for cryonics patients’ interests at an organizational level, but those who are interested in additional protection – during their time as cryonics patients as well as post-revival – can establish personal revival trusts for this purpose.

To some extent, personal revival trusts (aka reanimation trusts) suffer from the same legal hindrance as general patient care trusts, namely that the individual cryonics patient cannot simply name themselves beneficiary of the trust because upon cryopreservation they will lose their legal personality, and the trust would revert back to their estate.  However, Levenberg describes two ways a cryonicist can draft themselves into a trust that don’t require proof at the outset that human cryopreservation is reversible.  One option is that the revived patient is a contingent beneficiary of the trust[29]; the other is that the patient’s revival is a condition subsequent which terminates the trust, with disbursement of the trust property to the revived patient[30].  The distinction is subtle, but bears important implications.  If the revived patient is named as the contingent beneficiary, the trust must have another beneficiary in the interim, who could potentially call for modification or termination of the trust.[31]  However, on such an application, the court will have to consider the patient’s contingent future interest, and may appoint a guardian to represent that interest.[32]  On the other hand, if the revival of the patient is a condition subsequent terminating the trust, the cryonicist could choose between a trust with an interim beneficiary, or a purpose trust with no interim beneficiary (like a charitable purpose trust, or a trust for the maintenance of one’s “grave”).[33] Purpose trusts have the additional advantage of being available for this use in jurisdictions which do not otherwise allow perpetual trusts.[34]

Levenberg suggests that any concern over the possibility of the interim beneficiary hijacking the personal trust for their own benefit can be cured by designating one’s cryonics organization in that role.[35]  With the right drafting, in a jurisdiction that places emphasis on the original terms and purpose of the trust, this may well work (as with the APCT, discussed above).  An added level of assurance can be effected through the use of trust protectors, relatively recently emerged characters in trust law who can be empowered by the trust to, among other things, grant beneficial interests to new individuals – like newly revived cryonics patients… or newly legally recognized cryonics patients.[36]  Trust protectors feature in many of the personal revival trusts under development, including the Alcor Model Trust.[37]

Trusts clearly play an important role in the legal protection of cryonics patients.  However, on a critical note, it must be remembered that not all problems have financial solutions.  Cryonics patients benefit greatly from secure financial vehicles to support their continued maintenance, fund resuscitation research, and even revert to them if and when they are reanimated, but if the care of a particular patient or group of patients falls below reasonable standards due to negligent mismanagement, or is being threatened by hostile governmental policy, what can trustees really do?  Neither patient care trusts nor personal revival trusts have any means of exerting direct control over the patients themselves, regardless of circumstance.


Endnotes:

[1] Latin: “in fear”.

[2] Remember that these are actually separate legal mechanisms for transfer of custody of human remains. See Keegan Macintosh, “Legal Protection of Cryonics Patients, Part 1” Depressed Metabolism (23 February 2012), online: Institute for Evidence Based Cryonics <https://www.biostasis.com>.

[3] See e.g. Last Will and Testament for Human Remains and Authorization of Anatomical Donation, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[4] Rebecca Lively, “How to Protect Your Cryonics Arrangements from Interference by Third Parties”, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[5] This should be available in at least some jurisdictions.  See Re Tuck’s Settlement Trusts, [1977] EWCA Civ 11.

[6] Bellinger v Nuytten Estate, 2003 BCSC 563 [Bellinger].

[7] Peter G Lawson, “The rule against in terrorem conditions: What is it – Where did it come from – Do we really need it?” (2005) 25 ETPJ 71 at 80-81.

[8] Supra note 4.

[9] See Wills Variation Act, RSBC 1996 c 490, s 2; see also ORS § 114.015.

[10] See Kent v Mackay, [1982] 139 DLR (3d) 318 at para 20 (BC SC) (available on WL Can): “It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a testator to circumvent the provisions of the Wills Variation Act by the creation of such as [the no contest clause here].  It is important to the public as a whole that widows, widowers and children be at liberty to apply for adequate maintenance and support in the event that sufficient provision for them is not made in the will of their spouse or parent.”  This decision was followed by the court in Bellinger, supra note 6.

[11] ORS § 114.600.

[12] ORS 114.620.

[13] Leaving Georgia, which only provides a surviving spouse (along with any minor children) one year’s allowance from the deceased’s estate: OCGA § 53-3-1.

[14] See, for example RCW § 26.16.030.

[15] RCW § 11.02.070.

[16] RCW § 26.16.030(1).

[17] ORS § 114.015.

[18] Wills Variation Act, supra note 9.

[19] Mike Darwin, “Marcelon Johnson dies and is not cryopreserved” Depressed Metabolism (24 January 2009), online: Institute for Evidence Based Cryonics <https://www.biostasis.com>. See also supra note 4.

[20] Alcor Patient Care Trust, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[21] Ibid, art 3.

[22] ARS § 14-10502. These clauses are called “spendthrift provisions” due to their use in trusts drafted to support persons with bad borrowing habits.

[23] If Alcor ceases to exist, and the APCT cannot be converted into an independent legal entity, then the funds will be disbursed to another organization, or by some other means further the purposes of the Trust to support the care, revival, and rehabilitation of Alcor patients. See supra note 20, art 17.

[24] While Alcor drafted the APCT to be consistent with its 501(c)(3) status, whether the APCT is in fact a charitable purpose trust concerns the application of ARS § 14-10405(A). Framing the purpose of the trust in terms of scientific research and education is not necessarily conclusive of the matter.

[25] ARS § 14-10410, 14-10411, 14-10413, and 14-10414.  Not all jurisdictions mandate as strong deference to the original terms of the trust; see, for example, Trust and Settlement Variation Act, RSBC 1996 c 463.

[26] Ben Best, “Conditions to Licensure as a Cemetery” The Immortalist (March 2004), online: Cryonics Institute <http://www.cryonics.org/immortalist>.

[27] The assets designated for patient care on CI’s 2011 year-end financial report amount to more than double the contents of the Endowment Fund: Statement of Assets, Liabilities, and Fund Balance, online: Cryonics Institute <link:http://cryonics.org/financials.html>.

[28] Igor Levenberg, “Personal Revival Trusts: If You Can’t Take It with You, Can You Come Back To Get It?” (2009) 83:4 St John’s Law Review 1469 at 1494, n 129.

[29] Ibid at 1489.

[30] Ibid at 1495.

[31] Ibid.

[32] Ibid at 1489-90.

[33] Ibid at 1498.

[34] Ibid.

[35] Ibid 1495-96.

[36] See e.g. ARS § 14-10818(C)(1).

[37] Ben Best, “Asset Preservation Group Meeting” Long Life (July 2011) 23 at 24, online: Cryonics Institute <http://www.cryonics.org/immortalist>; see also Ben Best, “Fourth Asset Preservation Group Meeting” Depressed Metabolism (2 June 2010), online: Institute for Evidence Based Cryonics <https://www.biostasis.com>.

Legal Protection of Cryonics Patients, Part 1

In a previous article, Aschwin de Wolf argues that it might be easier to persuade others that cryonics patients are still alive according to existing criteria of death, than to argue for the adoption of a more progressive definition, such as information-theoretic death.  Presumably though, if we are to go to the trouble at all, it will not be solely to alleviate our subjective discomfort with the idea of being labelled dead, but rather because achieving such recognition would accrue practical benefits to present and future cryonics patients.  While it may seem obvious to state that living persons enjoy greater legal protection than dead ones, it would be inaccurate to base a comparison of the two on the assumption that, for cryonics purposes, the dead are not protected by the law whatsoever.  The question, then, is what legal protections do cryonics patients currently have, and are they enough?

First of all, what exactly does “legal protection” mean in this context? As a working definition, let’s say for the moment that we are looking for:
(a) social coercion mechanisms that promote the success and timeliness of a person’s cryopreservation, maintenance, and resuscitation, that
(b) persist after he/she has been declared dead,
(c) the ultimate authority of which flow from a jurisdiction’s laws through its courts, police, and other state agents.

(At this point, it should be pointed out that this article is not meant to be an exhaustive review, and is certainly not intended as legal advice, and so should not be relied on as such. It is solely intended as food for thought and further discussion.  The reader will also notice a distinctly Canadian perspective, and it will become apparent that generalization to other jurisdictions is not always possible. The author apologizes; it is simply the system with which he is most familiar.)

The right to a decent burial…

A corpse is not a person anymore, legally speaking, and does not have rights as such, but nonetheless there are legal obligations regarding the corpse which are imposed on still-living persons that derive from its former humanity and personhood.  Recognition of and support for prospective autonomy exist in tension with providing for the material and emotional needs of the living, as well as general social discomfort with the idea of reducing the physical remains of a former person to simple property that is owned by another.  Thus, very different kinds of rules apply to physically dealing with the corpse than apply to property owned by the person the corpse once was (property here encompassing both tangible property, and intangible “property”, like rights to another party’s performance of their obligations under a contract, etc).

The process of getting the deceased’s remains to an appropriate resting place (i.e. somewhere out of view and where it will not endanger the health of others) is partly addressed by criminal law.  Section 182(a) of Canada’s Criminal Code makes it an offence to neglect, without lawful excuse, to perform any duty imposed by law or undertaken with reference to the burial of a dead body or human remains.[1]  This is an indictable offence (roughly equivalent to a felony in the US) carrying a maximum penalty of five years imprisonment, but while prescribing this penalty for neglect of duty to bury, the Criminal Code does not itself create any such duty.  The source of the duty to bury is the common law, which calls for the executor or appointed administrator to ensure a dignified burial, or more specifically, a burial “befitting the deceased’s station in life”[2], and the term “burial” in this context has been broadly interpreted to include other forms of interment, as well as cremation.

Other aspects of the common law duty have been codified in and altered by provincial statutes.  In British Columbia, some important details can be found in the Cremation, Interment and Funeral Services Act.[3] Section 5 of the Act vests the right to control the disposition of human remains in the personal representative (read: executor) named in the deceased’s will, if any, and otherwise in the deceased’s spouse or next-of-kin.    Failing that, a government ministry may take charge, or else an unrelated person who was close to the deceased.  The person at the top of the list is not compelled to give instructions, however; if he/she is unavailable or unwilling, the right to control disposition passes to the next person in the list until someone agrees to take on the responsibility.  If multiple persons of the same degree of consanguinity cannot agree as to who among them has priority, the eldest of them takes it.[4]  A person may also apply to a court for priority irrespective of their relationship to the deceased, and on such an application the court must consider the feelings of the deceased’s relatives and associates, the beliefs and practices of others of their religion (if any), any relevant directions by the deceased, and whether the application concerns family hostility or a “capricious change of mind” regarding disposition of human remains.  The moral for cryonicists: make your intentions known early, widely, and often.

Once the person with the right to control disposition has been identified by section 5, section 6 of the CIFSA obliges him/her to exercise that right in accordance with any preference of the deceased written in their will or pre-need funeral services contract.  This is subject to a couple of important provisos, however.  First, a written preference of the deceased is not binding if compliance with the preference would be unreasonable, impracticable or cause hardship.[5]  Arizona’s analogous provision omits “impracticable”, and specifies hardship as economic or emotional.[6]  In either case, it is also probably inferable that the deceased’s instructions are only binding if they are otherwise lawful.  In Michigan, on the other hand, the deceased’s preferences are not binding on the person(s) with the right to control disposition, and neither Arizona nor Michigan gives the personal representative named in the will priority over next-of-kin in these matters, though Arizona does give priority over next-of-kin (but not over any spouse) to a person designated under a durable power of attorney.[7]  In light of this, it is rather fortunate that Robert Ettinger’s children supported his wish to be cryopreserved.[8]

Looking again at the BC law, the second exception to the duty to comply with a written preference of the deceased, is that compliance with the preference must be consistent with the Human Tissue Gift Act.[9]  Thus, a statutorily valid consent to donate one’s body or part thereof for therapeutic purposes, medical education, or scientific research will prevail over a contrary intention stated in the will or contract.[10]  The HTGA also states that upon death, such consent is “binding and full authority for the use of the body or the removal and use of the specified parts for the purpose specified”.[11]  This is a very broad authority compared to s.6 of the CIFSA, above, which only binds the person with the right to control disposition.  While the true legislative object here is almost certainly to hasten the organ transplant process by eliminating all possible sources of interference, this human remains transfer mechanism could be utilized by cryonicists in British Columbia analogously to the various state enactments of the Uniform Anatomical Gift Act in the US.  However, this does not mean that cryonicists would be advised to rely entirely on a signed body donation consent form, and not speak to the issue in their will, because if, for some reason, the donation mechanism fails (perhaps because the patient’s home jurisdiction refuses to recognize the cryonics service provider’s activities as scientific research), the disposition mechanism will operate in default to the same end.[12]  This is not a purely hypothetical concern: section 3(4) of Alberta’s equivalent to the HTGA states that only a university with a medical, dental or related health program may use a body donated under that Act for medical education or scientific research.[13]  Read in harmony with the rest of the Act, this rules out at minimum full-body donations to Cryonics Institute or Alcor.[14]  Whether the use of “body” in that section includes organs/parts, thus preventing head-only donations to Alcor as well is less clear.  Other sections of the Act refer to “any tissue, organs, or body”, so it could be argued that by negative implication the use of “body” on its own in s.3(4) refers only to donations of entire human bodies, permitting a workaround for members of Alcor who opt for neuropreservation. On the other hand, a court could decide the omission was a mere drafting error, and/or interpret the section ‘purposively’, if persuaded that the legislative intent was to restrict donation of tissues and organs in the same way as whole bodies.  If that were to be the case, Albertan cryonicists’ would be entirely restricted to the disposition mechanism for transfer of human remains.  Even more unfortunately, the preferences of the deceased with respect to disposition of their human remains are not binding on their personal representative or next-of-kin[15], so newly deanimated cryonics patients in Alberta are not at all protected in this regard.

At English-Canadian common law, historically speaking, the preferences of the deceased were not binding on executors because of a then well-accepted legal principle that there is no property in a corpse.[16] That is to say, because a person’s body was not owned by them in the legal sense, it wasn’t something that could be disposed of by a deceased in their will.  Written preferences of this kind being legally binding is something of an innovation in Canadian law[17], and might provide unexpected legal protection for cryonics patients, namely that if a deceased’s written instructions regarding disposition are binding on the person with the right to control disposition, then acting contrary to those instructions (without a lawful excuse like unreasonableness or hardship) is criminal neglect of duty per s.182(a) of the Criminal Code, as discussed above.  Thus, in of all places, British Columbia, hostile spouses, next-of-kin or poorly chosen executors could actually be criminally liable if they impede or neglect to facilitate their dearly-departed’s cryonics arrangements, although whether the police and prosecutors would decide there was a public interest in pursuing the matter is a different question entirely.  Furthermore, it doesn’t stretch the imagination to envision arguments that cryopreservation is unreasonable, or imposes some kind of hardship, and whether or not such excuses ultimately fail cannot repair the damage caused by the delay.  Nevertheless, it is clear that, with regards to the initial transfer of remains for cryopreservation, different jurisdictions offer varying types and levels of legal protections for cryonics patients.

The right to quiet repose…

Coincident to the executor’s (or other’s) duty to bury is a right of possession in the human remains, and this persists even after burial for the very practical reason that, otherwise, “those who oppose the executor would disinter the body as soon as it was buried.”[18]  That said, there are other, broader sanctions against disturbing human remains, both before and after burial.  Section 182(b) of the Criminal Code prohibits improper or indecent interference with, or offerings of indignities to a dead human body or human remains, punishable by up to five years imprisonment (like s.182(a), above).[19]  In Arizona, unauthorized disinterment or “mutilation” of human remains is a felony punishable up to 3.75 years for a first offence[20]; in Michigan, meanwhile, the maximum punishment for same is 10 years or $5000, and includes “defacing” of human remains as well.[21]  At first glance it seems strange that the Canadian provision doesn’t simply proscribe unauthorized or unlawful interferences with human remains.  Does this not imply that there are ways a person could intentionally interfere with human remains that, while not legally authorized, are nevertheless not improper or indecent?  The Criminal Code is not the whole picture, however; provincial legislation picks up where it leaves off.  The CIFSA prohibits unauthorized disinterment of human remains, with a maximum penalty of 12 months or $10,000.[22]

Though crafted to protect the corpse’s ‘right’ to non-interference (or perhaps the still-livings’ desire not to be confronted with evidence of the helplessness of mortality), section 182(b) could conceivably work contrary to cryonics patients’ interests as well, depending as it does on prevailing notions of decency, propriety, and human dignity.  The wishes of the deceased are only one part of the matrix of circumstances which will be considered in determining whether a particular interference was improper, etc.  By analogy, consent is not available as a defence to all criminal charges.  Nevertheless, the chances of a perfect storm arising of anti-cryonics police, prosecutors, judge and jury, resulting in a finding that cryopreservation is an affront to human dignity, seem remote.  The terms “mutilate” and “deface” are not themselves entirely value-mute, but the Arizona and Michigan provisions are more specifically circumscribed to leave standards of propriety in this area to the funeral industry[23]; and as before, body donations to research probably avoid these provisions entirely, though there is potential for complication when the cryonics service provider is regulated as a cemetery.

Whether the penalty at the other end of the law is a deprivation of liberty, property, or both, the best outcome from the perspective of the cryonics patient is no interference in the first place, so the best legal protection in that sense is the threat of such deprivations.  Unfortunately, all the rules discussed so far that may promote an individual’s cryopreservation and maintenance are limited by ‘lawful authorization’ exceptions, and thus whatever ‘rights’ a cryonics patient may be said to have against interference with their care are only public relations/political considerations if there is another pressing public need to be addressed.  Ascertaining a person’s cause of death when such is unclear tends to trump all else; in BC, even the Human Tissue Gift Act is expressly subject to the Coroner’s Act.[24]  The historical mandate of the coroner was to “speak for the dead”, and one must wonder if such a function is truly necessary when the “dead” has done a reasonably good job speaking for him/herself by making cryonics arrangements, the objective of which is clearly endangered by autopsy.  Cryonicists in the five US states which have enacted religious objection to autopsy legislation (California, New Jersey, New York, Ohio and Rhode Island) may find some relief by that route, but common to these is the ability for the coroner/medical examiner to override the objection where an autopsy is deemed necessary as part of a criminal investigation, or to meet an “immediate and substantial threat to the public health”.[25]  Those laudable public interests seem less compelling if there is a chance that the objector’s death is only a serious, but ultimately curable trauma (if stabilization procedures are allowed to begin right away, that is) but as discussed at the outset, that kind of argument relies on the adoption of a new definition of death, or the recognition of cryonics patients as alive according to the current one, which would result in cryonics patients having a substantially different set of legal protections than presently under examination…

Still to come: wills and trusts.

Endnotes (hyperlinked where possible):

[1] Criminal Code, RSC 1985, c C-46 s 182(a).

[2] Tzedeck v Royal Trust Co, [1953] 1 SCR 31 at 37.

[3] Cremation, Interment and Funeral Services Act, SBC 2004, c 35 (“CIFSA”).  Section 14 of the CIFSA prohibits the sale and marketing of cryonics arrangements in the province, but readers should note that Consumer Protection BC has issued an interpretation guideline stating that section 14 does not prohibit cryonics arrangements with service providers outside the province, nor does it prohibit local funeral directors from providing preparation and transport services related to such arrangements.

[4] Michigan and Arizona take a majority-rules approach: MCL § 700.3206(4) and ARS § 36-831(D).

[5] CIFSA, s 6(c).

[6] ARS § 36-831.01(A).

[7] MCL § 700.3206, ARS § 36-831(A).

[8] There is no evidence from CI’s report of Ettinger’s cryopreservation that his son, David needed to commence legal action in lieu of majority agreement between siblings.

[9] CIFSA, s 6(b), referring to Human Tissue Gift Act, RSBC 1996, c 211 (“HTGA”).

[10] HTGA, ss 4(1), 5(1).

[11] HTGA, s 4(3).

[12] HTGA, s 8.

[13] Human Tissue and Organ Donation Act, SA 2006, c H-14.5.

[14] Ibid, s 3(1).

[15] General Regulation (Cemeteries Act), Alta Reg 249/1998.

[16] Williams v Williams (1882), 20 Ch D 659.

[17] Quebec is the only other province to grant such a right: art 42 CCQ.

[18] Waldman v Melville (City of) (1990), 65 DLR (4th) 54.

[19] Criminal Code, s 182(b).

[20] ARS § 32-1364.

[21] MCL § 750.160.

[22] CIFSA, s 19.

[23] Supra notes 20 and 21.

[24] HTGA, s 13(1), referring to Coroners Act, SBC 2007, c 15.

[25] Stephen Bridge, “The Legal Status of Cryonics Patients: An Introduction”.  Washington’s state Senate recently passed a similar bill as well.

The 2011 Calorie Restriction Society Conference

On October 27-29 I attended CR VII, the 2011 Calorie Restriction Society Conference held in Las Vegas, Nevada.

Members of the Calorie Restriction Society restrict their calories while maintaining adequate nutrition as a means of extending their lifespan (or improving their healthspan), as has been proven to work in lower animals.

Although I was still in a wheelchair as a result of falling from a ladder and hip surgery, I got my airline to give me handicapped-support (wheelchair assistance), and I rented a wheelchair in Las Vegas.

CR VII was the seventh CR Society conference held in the ten years since the first such conference was held in the same city, in the same hotel, and in the same meeting-room ten years earlier in 2001. Thursday, October 27 featured presentations by Calorie Restriction Society Members, whereas Friday and Saturday featured presentations by PhD scientific researchers. I am a CR Society Member, so I was invited to speak on cryonics on Thursday. It was a small conference, so there were not many more than forty people attending on any of the days.

My presentation was preceded by a presentation by Peter Voss, who is both a CR Society Member and a Member of Alcor. Peter and his companion Louise Gold were the only CR Society Members other than me attending  the conference who are cryonicists. Peter spoke of the ultimate goal of indefinite lifespan, sharing his wisdom based on his experience practicing calorie restriction, describing cryonics as a “safety net of unknown fabric”, and mostly speaking of his goal of developing Artificial General Intelligence to accelerate research in life extension technologies. Concerning his CR practice, he noted that CR is not binary, and that people receive the benefits to the degree that they restrict their calories. He said that he does not count calories, but simply weighs himself and adjusts his calories appropriately, which is the practice I have adopted. Peter is not worried about hostile AIs because he believes that rationality is positively associated with morality. (See http://www.adaptiveai.com/ for a sample of Peter’s work.)

Although it was not a large group, I expected that such a group of dedicated life extensionists willing to go to extremes in restricting their calories would be very receptive to the practice of cryonics. On the other hand, Shannon Vyff warned me that although CR Society Members can be enthusiastic to hear about cryonics, they don’t sign-up. I gave considerable thought to the marketing aspect of my presentation. I decided to be very up-front about being a salesman, while nonetheless attempting to side-step salesmanship (and sales resistance) by concentrating on the technical issues and encouraging a technical discussion (although I did mention prices and insurance funding).

Alcor Member (and long-time cryonics promoter) Brenda Peters lives in Las Vegas, so I invited her to be my guest at the CR Society Conference. My thought was simply that Brenda and I could renew our friendship while enjoying the conference together.

I began my presentation by describing my and experience and mistakes in practicing calorie restriction as well as my fall in September which resulted in hip surgery and no prospect of walking again for many weeks — and how this had interrupted by exercise/CRAN program. When I asked who felt familiar with their knowledge of technical issues of cryonics, I was surprised that none of the non-cryonicists raised their hands.

After giving my presentation of the technical issues in cryonics I asked the audience to pair-up to discuss both their understanding of my presentation, and reasons they may have for thinking that cryonics may not work. After the paired discussions I asked for questions and objections. Brenda was more enthusiastic than I expected about raising her hand to comment. I somewhat bluntly said that I would rather hear from anyone but her, which was apparently confusing to people who weren’t aware that we knew each other. I was wanting to hear the unvarnished objections to the idea of cryonics which CR Society Members might have. I did not mean to hurt Brenda’s feelings, and I blame myself for not discussing my expectations with her beforehand. I did, nonetheless, allow Brenda to speak a couple of times.

It proved to be hard work getting CR Society Members to explain whatever objections they might have to cryonics. One fellow expressed his belief that not enough is known about the mind to know that cryonics can preserve it. I replied that the mind is based on the synaptic “connectome” and that minds recover from low-temperature surgery in which there is no electrical activity in the brain. Another fellow wanted to hear the experimental evidence that cryonics patients have been revived, to which I could only reply that cryonics is dependent on technologies which do not yet exist, and that revival seems inevitable to me if technology continues to progress and the anatomical basis of mind is preserved. One man believed that dogs had already been cryopreserved and revived, but I corrected his misconception by stating that the dogs have only been revived from cooling down to just above the melting temperature of water. When someone said that most businesses don’t last long, I replied that it is a mistake to compare the durability of cryonics organizations to efforts to start a diner in a location where the success is uncertain. One woman raised the overpopulation issue, which I noted is no more a plausible threat than the danger that too many people will practice Calorie Restriction. I added that the same logic would ban all medical research, especially research into preventing infectious diseases.

Although there were not many objections, neither did I hear much enthusiasm for cryonics. Perhaps they were stunned by an unfamiliar idea, and it takes time for resistance to be overcome. I had been hoping for some sign-ups. I had placed Membership forms on the literature table. It was as if they had no objections to cryonics, but still weren’t interested. Which left me thinking that I shouldn’t have asked for reasons why they think cryonics won’t work, but instead asked for reasons why they won’t sign-up.

A number of people complimented me on the quality of my presentation. But during subsequent discussions with CR Society Members at the conference, I heard further objections to cryonics. One CR Society Member told me that he hoped my presentation would motivate him to sign-up for cryonics. He said that he had mentioned cryonics to his mother several years ago, but she was freaked-out by the thought of being reanimated in a strange and alien world. Since then she had become demented, and he thought it would be wrong to foist cryonics upon her while she is in that condition.

Another CR Society presenter spoke of his project to develop an eco-friendly farm with local barter and community-building that would be sustainable through the disastrous global warming and prolonged depression he was expecting. His bleak vision of the future of technology left no possibility for cryonics, but at least he corrected himself when he started to say “cryogenics”.

Another fellow I spoke with later was concerned that cryonics organizations could not survive in light of the acrimony he saw between Members. His biggest concern, however, was that people of the future would be vastly superior, and treat him with contempt or worse upon his revival. A female CR Society Member told me that she is restricting calories entirely to increase her health-span, not her lifespan. She does not think that life is very good, and she has the hope and belief that the afterlife will be better.

Over lunch, one fellow suggested promoting cryonics as a means of cutting the astronomical health-care costs that so many people incur in their last year of life. I replied that any association of euthanasia with cryonics or any hastening of death on the expectation that cryonics may work would be disastrous for cryonics — and all the moreso if done as a cost-cutting measure.

I had difficulty moving around in the conference room due to the tables and my wheelchair, which made it difficult to chat with people during breaks. I had a similar problem during meal breaks. Whether I would have gotten a better understanding of why no-one seemed eager to sign-up for cryonics if my mobility had been better remains to be seen. I would think that after years of giving presentations about cryonics I would become blunted to lack of interest, but each such experience remains uniquely poignant and disappointing.

I learned much from the scientific presentations, but I won’t attempt to summarize very much. I was, however, very impressed by the extent to which a linkage was made between the blockage of the insulin/IGF-1 pathways in lower organisms and the practice of calorie restriction by humans. There is evidence that protein restriction may be the essence of calorie restriction, and that low protein diets are associated with reduced levels of IGF-1, but only when protein is less than 12% of macronutrients. Increasing insulin sensitivity seems to be the key to extending lifespan, yet although exercise is the most powerful intervention increasing insulin sensitivity, exercise does not increase lifespan.

Stephen Spindler and Luigi Fontana are scientists who have a long and intimate relationship with the CR Society. Both were speakers at this conference. Luigi in particular has been conducting studies on the physiology of long-time calorie restriction practitioners, and the benefits that are seen in the risk factors for various aging-associated diseases. He has published many studies of this research:

http://www.ncbi.nlm.nih.gov/pubmed/21402069

http://www.ncbi.nlm.nih.gov/pubmed/21841020

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2724865/

http://ajpheart.physiology.org/content/294/3/H1174.long

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2829867/

A DVD of the presentations is being made by the CR Society, and will be available for sale within a few weeks, I expect.

What you don’t eat can’t hurt you

Many people in the life extension community follow some kind of diet. Historically, caloric restriction (CR) has been the most popular and most discussed option. Other popular diets include the Mediterranean diet and the Paleolithic diet.  In one sense, comparing these diets is like comparing apples and pears. The emphasis of caloric restriction is on how much we eat (given adequate nutrition) and the other diets are more concerned with what we eat. People who follow certain diets may also have different aims. In the case of CR, life extension. In the case of the Mediterranean diet, preventing and delaying cardiovascular and neurodegenerative diseases. And many who adopt a low-carb diet are (initially) motivated by securing sustainable weight loss.

Assuming that diet plays some role in longevity and disease, it is rather obvious that cryonicists should take a strong interest in choosing the right diet. As it looks to me, there are a number of important considerations.

1. The most important aim of a diet for cryonicists should be to avoid, or delay, neurodegenerative diseases. Extending your life and ending up with advanced Alzheimer’s Disease is worse than dying young and being cryopreserved under circumstances that optimize preservation of personal identity.

2. The choice to follow a particular diet should work for your genotype. Admittedly, nutrigenetics is a very young field but there is a growing recognition that human evolution has not stopped since the start of agriculture and that different populations respond differently to certain diets. And even within these populations we should expect individuals to respond differently to diet.

3. A decision to follow a certain diet should be based on empirical evidence, not on intuition, abstract theories, or thought experiments. In the case of choosing diets, this  means identifying a diet that has shown a favorable ratio of good outcomes in experimental studies, and humans in particular.

Putting this all together, it seems to me that a low calorie diet remains the most defensible choice for most cryonicists because it has been studied longer, studied more extensively, and has the most robust favorable outcomes. CR also seems to stand out favorably in that there are relatively few studies that find detrimental outcomes and its benefits seem to embrace many species and populations. Another advantage of CR is that it can capture all the important goals that life extentionists seeks from a diet: longevity, weight loss and prevention (or delay) of neurodegenerative diseases.

It may be the case that many of the benefits of CR actually come from a reduction of carbohydrates. But one of the problems with a paleolithic diet is that it may be more beneficial for certain populations than others. As Gregory Cochran and Henry Harpending demonstrate in their seminal book The 10,000 Year Explosion: How Civilization Accelerated Human Evolution, human evolution did not stop when hunter gatherers started agriculture, and some populations are more adapted to agricultural products (such as milk) than others. Another concern about the paleolithic diet is the controversy surrounding saturated fat. For life extentionists who carry one or two copies of the ApoE4 gene, a diet high in saturated fat may actually increase the probability of Alzheimer’s disease. Others dispute this and recommend a diet high in (saturated) fat to prevent dementia.  In light of this uncertainty, the most prudent course of action may be to incorporate the emerging evidence against carbohydrates into a CR diet without emphasizing saturated fat.

There is an ongoing debate whether the longevity benefits of CR will be as great in humans as in lower species but the evidence so far seems to be that there are at least benefits in terms of delaying the onset of age-associated diseases. Whether these benefits are conferred through a change in gene expression or because they reduce the amount of chemicals that can participate in pathological events is not clear, but our incomplete knowledge about the mechanisms involved should not deter anyone from following CR. As I currently see it, the role of ongoing research into nutrigenetics and other diets should be to further calibrate and refine a low calorie diet to optimize it for a specific individual and to further delay the onset of neurodegenerative diseases.

CR seems to come closer to being a universal diet than other diets but it may be contra-indicated for some people, such as certain athletes and extreme ectomorphs. There are also cases in the life extension community of people who pushed it too hard (or neglected good nutrition), offsetting all the gains from the diet, or even endangering their own health. A diet that does not make a person feel good, is generally not a diet that is good, let alone one that can be sustained over time.  The aim of a diet should not be to conform to an impersonal set of recommendations, but to monitor your own response and increase the chance for personal survival.

Smartphone Apps for the Smart Cryonicist

As every modern consumer knows, smartphones are today’s go-to portable technology. Everything from GPS navigation to finding a good deal on your next meal or haircut right NOW to a wide variety of games and applications may be had at the touch of a button. But developers of smartphone applications (i.e, “apps”) are only just beginning to realize the true capabilities of having so much computing power in the palm of your hand. Indeed, the possibilities for health monitoring applications in combination with GPS location bodes well for cryonicists.

Until cryonics-specific apps become available, there are several existing applications useful to cryonics members and organizations. Here are some of the most interesting from the Android Market:

ICE (In Case of Emergency):   Emergency personnel look for ICE information in patient mobile phones. This ICE app has a couple of widget options and can be accessed even when the phone is locked. My favorite feature is the ability to put any special instructions (like the protocol from your Alcor bracelet) on the main screen. The app acts primarily as an emergency contact list. Your cryonics service provider should be #1, followed by family and friends who support your cryonics arrangements. Additionally, you may enter your vital stats, medical and dental insurance information, and any known allergies, conditions, and/or medications.

For those with “dumb phones,” just create a contact called “ICE” and enter your cryonics organization’s emergency number. Additional information about placing ICE  numbers in your cell phone may be found in this article by Fred and Linda Chamberlain.

Emergency Button: Emergency Button sends a distress signal with your coordinates to a defined recipient when pressed. This has obvious utility for all matters of personal safety, and can be used to alert your cryonics organization to emergency health situations as soon as they emerge.

Google Latitude: Latitude is a GPS location tracking app. It allows for various privacy settings and can be configured to share only with specific people. A cryonics organization could, with its members’ permission, use such an app for real-time location tracking.

These are just three basic apps that are commonly available and useful to cryonicists now. I hope to be updating this list as improvements in smartphone technology continue.

ApoE4 – The Ancestral Allele

Reportedly, when James Watson and Steven Pinker had their genome sequenced, they declined to know their risk for Alzheimer’s disease. Clearly this is not an option for life extensionists and cryonicists, who are better off knowing whether they have a copy or, worse, two copies of the ApoE4 gene.

Patri Friedman, son of the libertarian economist David Friedman (who in turn is the son of the Nobel laureate Milton Friedman), recently learned that he has two copies of the ApoE4 gene when 23andMe updated their reports. Caucasian and Japanese carriers of two E4 alleles have between 10 and 30 times the risk of developing Alzheimer’s by 75 years of age, as compared to those not carrying any E4 alleles. Patri is a life extensionist, practitioner of the paleo diet, and recently made cryonics arrangements with his whole family at Alcor – and is thus far more prone to a pro-active course of action.

When he realized that there was no good central resource for people with copies of the ApoE4 gene he started a new blog called ApoE4 – The Ancestral Allele, which aims to share practical information and research for health-conscious E4 carriers. The first posts discuss some of the benefits of having the E4 gene (better episodic memory) and what kind of diet is recommended for E4 carriers. He also encourages guest posts and other co-bloggers to help run the website.

The double standard about cryonics

One of the most predictable features of public debates about cryonics is that those arguing in favor of cryonics are held to more rigorous standards than those seeking conventional medical treatment. Advocates of cryonics do not just have to prove that cryonics will work, they are also supposed to solve problems like overpopulation and the presumed boredom arising from expended lifespans. To some, people who make cryonics arrangements have an inflated perception of their own importance and should just forgo such selfish attempts to extend their lives. The default position seems to be that people should not exist and that life needs justification. Could you imagine such antinatalist rhetoric being employed when a person seeks conventional medical treatment to extend their life? We can’t, and such responses are quite indicative of the fact that people are not interested in serious evaluation of the cryonics argument.

The most striking case of cryonics being held to higher standards than conventional medicine concerns the requirement that “cryonics” needs to “work.” Even people who have made cryonics arrangements routinely say something like, “I estimate the probability of cryonics working as 5% but life insurance premiums are low and I have nothing to lose if it does not work.” To see how strange such a statement is, let’s look at these two terms, “cryonics” and “working.”

Cryonics is an experimental medical procedure to stabilize critically ill patients at low temperature to benefit from future advances in medicine. Such a definition can include a wide variety of cases, ranging from ice-free cryopreservation (vitrification) as an elective medical procedure in a hospital to the freezing of a person who is found days after circulatory arrest. Considering the enormous variability under which people can be cryopreserved, to claim that “cryonics” will not work without specifying under what conditions a cryopreservation is performed is akin to saying that “emergency medicine” or “chemotherapy” does not work — an absurd claim.

Usually when people argue that cryonics does not work they refer to the mistaken view that cryopreservation that is not initiated within hours, or even within minutes, after death does not make sense because the brain has “died” at that point. Such a view completely ignores the fundamental cryonics argument that lack of function of the brain does not imply that the neuroanatomical basis of identity is irreversibly destroyed.

But let us accept this position the sake of the argument. What such a critic is basically saying is that cryonics cannot work because cryonics patients are cryopreserved under conditions that do not allow it to work. To see how strange such a position is, imagine a country where law would prohibit CPR until 15 minutes of death. Would anyone be impressed if someone would argue that CPR does not work because patients suffer irreversible brain damage after 15 minutes of circulatory arrest? Of course not. We would instead insist that such obstacles should be removed so that these life-saving technologies can be employed as soon as needed. Clearly, whatever the merits of cryonics are, it is not reasonable to conflate the conditions under which cryonics is often conducted with the idea of cryonics as such.

Now let’s look at the second term. What does it mean for cryonics to “work?” Naturally, we would like a medical procedure to cure the disease and restore the patient to the condition than he was in prior to the disease. In real life this often happens, especially in the case of minor infections and minor insults. But there are also many cases where (heroic) medical interventions are aimed at keeping the patient alive without expecting a full recovery without side effects. This is often the case in acute cardio-respiratory arrest and stroke. Would we prefer a complete recovery for such patients? Of course. But would we say that interventions that aim to save a patient’s life did not work if we fail to meet such an ideal – say, a permanent loss of movement in one arm or reduced memory function? No, our first concern would be with the patient’s survival and his perception of the quality of his “new” life.

In the case of cryonics things are not much different. We hope that advanced cell repair technologies will be successful in completely restoring the patient to good health in a rejuvenated state. For some patients complete inference of the original structure of the brain might not be possible, but advanced neural archeology and neurogenomics may restore a significant degree of the original person. We do not heap scorn on such scenarios in today’s medicine and there is no reason to hold cryonics to higher standards, especially if one also advocates the very restrictions that are responsible for such less than perfect outcomes. In fact, there is no reason to be scathing about any credible attempts to save or prolong a life, even if the attempt will not necessarily succeed. Such a perspective is a given in conventional medicine or rescue operations.

One objection to this position is to argue that cryonics cannot work even under the most favorable conditions. Such an argument would basically entail that if a critically ill patient is stabilized without ischemic delays, without ice formation, and without fracturing, it should be categorically ruled out that technologies will ever be developed to repair the original disease of the patient and any form of injury that occurs during the cryopreservation process itself. I personally would consider such a position extremely dogmatic (would anyone argue such a position of long-term technological stasis if the cryonics context were dropped?) but it raises a fundamental question about the burden of proof. Should it rest with the person who aims to prolong life or should it rest with the person who aims to prohibit such attempts? Asking the question is answering it.

Gerald Feinberg on physics and life extension

Gerald Feinberg, a Columbia university physicist who, among other things, hypothesized the existence of the muon neutrino, had a strong interest in the future of science and life extension. In 1966 he published the article “Physics and Life Prolongation” in Physics Today in which he reviews cryobiology research with the aim of realizing medical time travel. Unlike most of his scientific colleagues, Feinberg recognized that it might be possible for people dying today to benefit from future advances in science in the absence of perfected techniques:

For the living it is necessary to await successful completion of freezing research before attempting to freeze them. For the newly dead this consideration is irrelevant since the dead have nothing to lose by being frozen, even by imperfect methods…

He doubts, however, whether “the primitive freezing techniques now available” would be good enough to permit successful resuscitation in the future.  Although his article ends in endorsing cryonics as a procedure, Feinberg did not make cryopreservation arrangements himself, despite his familiarity with molecular nanotechnology and his association with the Foresight Institute.

In the June 1992 issue of Cryonics magazine, Mike Perry writes:

Only a few days ago, as I write this, Gerald Feinberg, aged 58, died of cancer.  He was not frozen.  It appears  that he didn’t lack the means to make the arrangements, nor the time. Somehow, he was just not interested enough.  Friends or acquaintances I’ve talked to could give little in the way of definite reasons for the lack of  interest, but I get the impression that, when all was said and done, the  interest he did show was mainly academic after all.  Another factor may  have been hostility from colleagues and family members.  Apparently he was well criticized for the Physics Today article on the prolongation of life, though not for something really scientifically daring, like the tachyon  theory.

Human cryopreservation procedures have changed considerably since 1992 and cryonics researcher Mike Darwin has composed an ambitious article to answer the question whether current cryopreservation techniques can preserve identity. One of the most important observations in this article is that we do not need to wait until the future to get a better understanding of how good our current procedures are in this regard.

As long as we keep in mind that the absence of ultrastructural evidence for the preservation of identity-critical information does not necessarily mean the absence of this information as such (after all, future imaging and data gathering technologies may be more powerful than today’s) it is very important for cryonics advocates to recognize that preliminary work to infer the original structure of the brain from (3D) images of ischemic and cryopreserved tissue can start right now. Even in the absence of physical technologies to restore those structures to their native state, demonstrating that we can infer the original state, and visually reconstruct it, can be another argument in favor of human cryopreservation.

Further reading: Gerald Feinberg – Physics and Life Prolongation

Medico-Legal Aspects of Human Cryopreservation Optimization

Introduction

Ongoing legal challenges and hostile interference of relatives have increased awareness among cryonicists that addressing the likelihood that one will be cryopreserved at all should take center stage among other strategies for survival. As a consequence, a number of individuals have recently taken on the task of working out the conceptual and legal challenges to minimize hostile interference (for a contribution on the ethical aspects of cryonics interference, look here).

One aspect of cryonics optimization planning that has received little attention to date is to develop legal strategies to deal with medical and legal issues surrounding one’s death, terminal illness, and the dying phase. In this memo I will outline some of the most important medical and medico-legal issues, how cryonicists could benefit from recognizing them, and suggest some legal and practical solutions. Before I get to the substance of these issues I would like to briefly identify all the stages in which proactive cryonics planning can improve our odds of personal survival.

Opportunities for cryonics optimization

The first and most obvious decision is to make cryonics arrangements. Alcor members face complicated decision making because the organization offers both whole body cryopreservation and neuro cryopreservation. From the perspective of cryonics optimization many members choose neuropreservation because it enables the organization to exclusively focus on what matters most; the brain. There is also a logistical advantage. In case transport of the whole body across state lines is delayed the isolated head can be released in advance as a tissue sample. Additionally, a number of Alcor members have recognized that it is possible to have the best of both worlds and combine neuro-vitrification and separate cryopreservation of the trunk. This allows the member to take advantage of the superior preservation of the brain that is available for neuro patients without having to forego whole body cryopreservation. This option is not widely advertised so one is encouraged to contact Alcor about revisions in funding and paperwork.

The other obvious decision is to have secure funding in place. Many members have given extensive thought about funding mechanism and wealth preservation so there is little need to discuss this here. From the perspective of cryonics optimization it is important to emphasize the importance of over-funding your cryopreservation. This not only protects you against future price increases, but also enables you to take advantage of technical upgrades that cannot be offered at the current preservation minimums. Another aspect to consider is leaving money to cryonics research. Although it is reasonable to expect that general progress in science will include general cell repair, there may be areas that will only be pursued by those who have a scientific or personal interest in resuscitation of cryonics patients. As in many areas in life, diversification is key. One should not solely depend upon Alcor or CI for successful resuscitation research or efforts.

Another important opportunity for cryonics optimization is to recognize the importance of proximity. From a technical point of view, there is simply no comparison to de-animating near the cryonics facility of your choice. This is not just a matter of reducing ischemic time. Remote standby and stabilization is a fertile ground for all kinds of logistical and legal complications. Most cryonics members do recognize the importance of reducing transport times but it is an established fact that as soon people become terminally ill they become more resistant to the idea of relocating and often prefer to die among friends at home. It is important to anticipate this scenario and to not delay relocation plans until the last minute. Another advantage of relocating at an earlier stage is that one is better protected in case of a terminal disease with rapid decline or sudden death.

As mentioned above, one issue that is getting increasing attention is how to protect oneself against hostile relatives and third parties. The take-home message is to alter cryopreservation contracts and your paperwork in such a matter that there is an incentive *not* to interfere.

Last but not least, something should be said about community building. Cryonicists can greatly benefit from becoming active in their local cryonics group. Often these meetings are open to members of all cryonics organizations. Most cryonics groups organize standby and stabilization trainings where members can familiarize themselves with the basics of the initial cryonics procedures. Such groups may not only play a part in your own future cryopreservation but are also useful to get a basic understanding about what you can do in the case a local member or a loved one needs to be cryopreserved. Another important aspect of participation in a local cryonics group is that one remains in contact with other cryonicists. When people get older their friends and family members die and the member has little communication with those who are aware of his desire to be cryopreserved. If you live in an area where there are no local cryonics groups contact your cryonics organization and/or start your own local group.

Physician-assisted dying

If there was more widespread acceptance of cryonics the harmful delay between pronouncement of legal death and the start of cryonics procedures would not exist. After a determination of terminal illness, preparations would be made to ensure a smooth transition between the terminal phase and long term care at cryogenic temperatures.

Some states have enacted legislation that allows a terminally ill patient to request the means to terminate their life.  Assisted suicide is currently legal in the following three states: Oregon, Washington, and Montana. Physician-assisted dying does not remove the current obstacle that cryonics procedures can only be started after legal pronouncement of death but it can bring the timing of death (and thus of standby) under the patient’s control. Utilizing such laws can also greatly reduce the agonal phase of dying and its associated risk of damage to the brain.

The legal requirements for utilizing physician-assisted suicide can vary among states but, as a general rule, require that a patient has been diagnosed with a terminal illness with no more than six months to live, that the patient is of sound mind, and that the request is made in written form and witnessed. The State of Oregon has a residency requirement to discourage physician-assisted dying tourism.

Since cryonics procedures are performed after legal death, there is no reason why cryonics patients are exempt from utilizing these laws. Despite rumors to the contrary, there is no evidence that utilization of these laws require mandatory autopsy. After all, the cause of death in physician-assisted dying is clear; self- administration of the lethal drug. To avoid any possible accusations that cryonics organizations encourage the use of such laws, it is recommended that no person associated with the cryonics organization should be a witness, let alone be the physician that prescribes the lethal drugs.

Sudden death and autopsy

One of the worst things that can happen to a cryonics member is sudden death. Especially when the patient is young with no prior heart conditions, an autopsy is almost guaranteed. There is little one can do to avoid sudden death aside from choosing a lifestyle that reduces cardiovascular pathologies. The only preparation for dealing with sudden death is to become a religious objector to autopsy. Some states (including California, Maryland, New Jersey, New York and Ohio) have executed laws to restrict the power of the state to demand an autopsy. Although exceptions can still be made in cases of homicide or public health there is little to lose in using such provisions. The websites of Alcor and CI have links to the relevant forms to execute. The Venturists are offering a card for their members stating that they object to autopsy. This card can be requested from Michael Perry () at Alcor. An example of such a card is provided below.

Sudden cardiac death is not the only reason for ordering an autopsy. An autopsy is typically ordered if there are criminal suspicions (homicide) or suicide. There is also a greater risk of autopsy when a patient dies in absence of other people. Since many old cryonicists are single and spent a lot of time alone they are also at an increased risk for autopsy. This is another good argument to remain involved with local cryonics groups and in frequent contact with other cryonicists.

If autopsy cannot be avoided it is important that the cryonics organization is notified promptly. Cryonics organizations can make another attempt to persuade the authorities to abstain from an autopsy or to request a non-invasive autopsy that exempts and protects the brain. The cryonics organization can also issue instructions for how the patient should be maintained prior, during and after autopsy. It might be worthwhile to generate a template of general autopsy instructions for cryonics patients. Such a document may not be binding but it could be useful in limiting the amount of ischemia and injury.

The dying phase and Advance Directives

Most cryonics members have a basic understanding of the importance of time and temperature to protect a cryonics patient after legal pronouncement of death. Fewer people recognize the effect of the dying process itself on the outcome of a cryonics case. In best case scenarios (physician-assisted dying, withdrawal of ventilation) the dying phase is relatively rapid while in worst case scenarios extensive ischemic injury to the brain is possible. Little work has been done to outline recommendations for the terminally ill cryonics patient. One of the main objectives of this article is to recognize that cryonics members could benefit from a general template that can be used in their Advance Directives and to guide surrogate decision makers.

At this point it is useful to briefly describe how the dying phase itself can affect the outcome of cryonics procedures (for a more detailed treatment see the appendix at the end of this article). A useful distinction is that between terminal illness and the agonal period. A patient is classified as terminal when medical professionals establish that the patient cannot be treated with contemporary medical technologies. During this period the patient is usually still of sound mind and able to breathe and take fluids on his/her own. Unless the patient has suffered an insult to the brain or a brain tumor, there is no risk for ischemic injury to the brain yet. At some point, however, the body’s defense mechanisms will be overwhelmed by the patient’s disease and the patient enters the agonal phase. The agonal phase, or active dying phase, can be characterized as a form of general exhaustion. The body is still fighting but with decreasing success and efficiency. One of the biggest concerns for cryonics patients is the development of (focal) brain ischemia while the (core) body is still mounting its defense.

It would be impossible to design an Advance Directives template that is optimal for all cryonics patients, but there are a number of general guidelines that can inform such a document:

* All health care decisions should be guided by the objective of preserving the identity of the patient throughout the terminal and dying phase.

* Measures to prolong dying should only be initiated or accepted if they result in less ischemic injury to the brain.

* Life-sustaining measures should be withheld in case of traumatic or ischemic insults to the brain.

To ensure that sensible decisions are made in situations that are not covered by these Advance Directives, a Health Care Proxy can be executed that designates a person to make those decisions. It is understandable to give such power to the person closest to you but in the case of cryonics it is recommended that this responsibility should be given to a person with a strong commitment to your desires and a detailed understanding of the medical needs of cryonics patients.

Pre-medication of cryonics patients

If a critically ill cryonics member is at risk of ischemic brain injury during the dying phase it stands to reason that some palliative treatment options are better than others. One possibility for cryonics patients is to specify such options in one’s Advance Directives. Another scenario in which pre-medication is possible is where the medical surrogate is strongly supportive of such measures. It should be noted that such a decision rests solely with the member or his/her medical representative. Cryonics organizations should not be involved in the pre-mortem treatment of the patient.

There are two important questions about pre-medication of cryonics patients:

1. Is it safe?

2. Is it beneficial?

The answer to the first question has a lot to do with the status of the pharmaceutical agents in question. For example, a supplement like melatonin is less controversial than a prescription drug like heparin. The most important thing to keep in mind is that drugs that may be beneficial after legal pronouncement of death could have adverse effects in critically ill patients. Good examples are drugs that have effects on blood rheology and clotting. One would rather forego the hypothetical benefit of a drug if there is a non-trivial change of triggering major controversies about drugs taken during the dying phase. This leaves only certain supplements as relatively safe options for pre-medication of cryonics patients.

The answer to the second question is not clear. The rationale behind pre-medication is that it can protect the brain during agonal shock and its associated ischemic events. Evidence for this belief is usually found in the peer reviewed literature on neuroprotection in ischemia. However, there is a clear difference between the administration of neuroprotective agents during the dying phase and the administration of neuroprotective agents prior to artificially-induced acute ischemia. One perspective is that such agents are beneficial but only delay the ischemic phase of the dying period. In this case supplements have little neuroprotective effect. An alternative perspective is one where such supplements do not alter the agonal course as such but provide more robust protection after circulatory arrest. Obviously, this matter is not of concern to conventional medicine so there is little evidence to make rational decisions. In light of the previous discussion, the current (tentative) verdict should be that a case can be made for pre-administration of neuroprotective agents but that these agents should be confined to “safe” supplements like melatonin, Vitamin E and curcumin. Whether such a regime would be beneficial needs to be decided on a case by case basis and is, therefore, more in the domain of the Health Care Proxy than Advance Directives.

Do Not Resuscitate Orders

Do Not Resuscitate (DNR) orders present one of the most challenging issues for cryonics optimization. On the one hand, we would like to benefit from any attempt to resuscitate us in case of sudden cardiac arrest (or any other acute events that can lead to death). On the other hand, we would not like to be subject to endless rounds of futile resuscitation attempts that can damage the brain.

One would be inclined to think that resuscitation attempts should be made in case of sudden insults or during surgery but that no resuscitation attempts should be made during terminal illness. In reality things are not that simple. For example, resuscitation may be possible after 8 minutes of cardiac arrest but the patient can suffer severe brain damage as a consequence. Such a scenario can be minimized by executing a DNR at the cost of foregoing any resuscitation attempts at all. Would this outweigh the benefits of successful resuscitation attempts? It is hard to see how an objective answer to this question can be given without taking a specific person’s views on risk and treatment into account. One way to mitigate this dilemma is to make a distinction in your Advance Directives between pre-arrest emergencies (for example, resuscitation should be permitted in the case of labored breathing but presence of heart beat) and full arrest. An in-hospital situation where resuscitation of a critically ill patient would be helpful would be where it would allow a cryonics standby team to deploy at the bedside of the patient. As can be seen from these examples, good resuscitation instructions for cryonics patients require a lot of attention to context. Because confusion could arise whether Advance Directives would include pre-hospital emergency procedures it is recommended to execute an explicit document if you want these cases to be covered – such a document could be complemented by wearing a bracelet.

Creating a general template

This article has identified a number of important medico-legal issues that need to be addressed by cryonicists to optimize their cryopreservation. It has become clear that in the case of many topics we would all benefit from uniform and effective language. The next step is to translate the concerns discussed in this document in clear legal language so that templates can be offered to all members of cryonics organizations to draft their own Living Will and Advance Directives. One potential problem of such a general template is that it may not conform to state regulations and needs additional tweaking to make it valid in the state where the person lives.

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Appendix :  Neurological damage during the dying phase

Securing viability of the brain by contemporary criteria is the most important objective of cryonics standby and stabilization. Recognition of how pathological events in the central nervous system can defeat this objective is of great importance. As a general rule, the risk for increased brain damage is higher during slow dying. For example, when the ventilator is removed from the patient who is not able to breathe on his own the time between this action and circulatory arrest can be short. Conversely, when a patient is going through a prolonged terminal and agonal phase (regional) injury to the brain can occur while the body itself is still fighting for its survival.

The human brain has little storage of excess energy. As a result, hypoxia causes the brain to deplete its oxygen reserves within 30 seconds. The energy depletion that follows cerebral hypoxia during the dying phase has a number of distinct effects: 1) excitation or depression of certain processes in the brain, 2) alteration in the maintenance of structural integrity of tissues and cells, and 3) alteration of neuromediator synthesis and release. The depletion of oxygen leads to a switch from aerobic to anaerobic energy production. As a consequence, there is an increase in the metabolic end-products of glycolysis such as lactic acid which decreases pH in the brain. After 5 minutes no useful energy sources remain in the brain, which can explain why the limit for conventional resuscitation without neurological deficits is put at 5 minutes as well. Because the dying phase leads to progressively worse hypotension and hypoxia the metabolic state of the brain after the agonal phase is worse than if there would have been sudden cardiac arrest.

Light microscopic changes have been observed in brain cells after 5 minutes of ischemia. Prolonged hypotension, as can occur in the agonal patient, can lead to the appearance of “ghost cells” and disappearance of nerve cells. Such observations provide evidence that structural changes, including cell death, can occur prior to clinical death. Another manifestation of hypoxia (or hypotension) is the progressive development of cerebral edema. The resulting narrowing of vessels and decrease of intercellular space can, in turn, aggravate energy delivery to tissues. Of particular importance for cryonics stabilization procedures is the development of no-reflow which can prevent complete restoration of perfusion to parts of the brain during cardiopulmonary support. There is no consensus as to whether no-reflow can occur as a result of prolonged hypotension (as opposed to complete cessation of blood flow), but an extended dying phase can set the stage for cerebral perfusion impairment after circulatory arrest.

The central nervous system does not shut down at once. Throughout the terminal and agonal phase alternations in the brain progress from minor changes in awareness and perception to deep coma. As a general rule, more recent and complex functions of the brain disappear earlier than the most basic functions of the brain. The uneven brain response to hypoxia may reflect different energy requirements, biochemical and structural differences, and/or the activation of protective mechanisms to preserve the “core” functions of the brain. The CA1 region of the hippocampus has been demonstrated to be uniquely vulnerable to ischemia. This presents a problem for contemporary cryonics since the objective of human cryopreservation is to preserve identity-relevant information in the brain.

This article is a slightly revised version of a paper that was submitted for the 4th Asset Preservation Meeting near Gloucester, Massachusetts.

Neural cryobiology and the legal recognition of cryonics

It has been said that if you want to persuade someone, you need to find common ground. But one of the defining characteristics of cryonics is that proponents and opponents cannot even seem to agree on the criteria that should be employed in discussing cryonics. The cryonics skeptic will argue that the idea of cryonics is dead on arrival because cryonics patients are dead. The response of the cryonics advocate is that death is not a state but a process and there is good reason to believe that a person who is considered dead today may not be considered dead by a future physician. In essence, the cryonics advocate is arguing that his skeptical opponent would agree with him if he would just embrace his conception of death….

Cryonicists have named their favorite conception of death “information-theoretic death.” In a nutshell, a person is said to be dead in the information-theoretic sense of the word if no future technologies are capable of inferring the original state of the brain that encodes the person’s memories and identity. There are a lot of good things to be said about substituting this more rigorous criterion of death for our current definitions of death. However, in this brief paper I will argue that our best response does not necessarily need to depend on skeptics embracing such alternative definitions of death and that we may be able to argue that opponents of cryonics should support legal protection for cryonics patients or risk contradicting conventional definitions of death.

In contemporary medicine, death can be pronounced using two distinct criteria; cardiorespiratory arrest or brain death. A lot of ink has been spilled over the co-existence of those criteria and its bioethical implications but I think that most people would agree that the practice of medicine requires this kind of flexibility. What is interesting for us is that clinical brain death (or brain stem death) is defined as “the stage at which all functions of the brain have permanently and irreversibly ceased.” There are a number of ways how such a diagnosis can be made, but in this context I want to focus on the absence of organized electrical activity in the brain.

We first should note the use of the word “irreversible.” After all, if a patient is cooled down to a low core temperature to permit complicated neurosurgical procedures most of us would not say that this person is “temporarily brain dead.” As a matter of fact, one could argue that cryonics is just an experimental extension of clinical hypothermic circulatory arrest in which there is a temporal separation of stabilization and treatment. Now, we could argue that what may be irreversible by today’s standards may not be irreversible by future standards but then, again, we are trying to persuade the other person to accept our view of future medicine. It would be much better, and I hope much easier, to argue that contemporary cryopreservation techniques can preserve organized electrical activity in the brain. The advantage of this approach is obvious. Instead of arguing in favor of our own criterion of death we can argue that, according to mainstream criteria for determination of death, cryonics patients are not dead. This is an interesting case in which a scientist (i.e., a cryobiologist) may be able to make a major contribution to the legal recognition and protection of cryonics patients.

So where are we standing right now? How good are our preservation techniques? If we aim for reversible whole brain cryopreservation a cryoprotective agent should have two properties: (1) elimination of ice formation, and (2) negligible toxicity. In the early days of cryonics, we were not able to satisfy both criteria at once. Using just a little bit of glycerol would not be toxic but it would still allow massive ice formation. Using a lot of a strong glass former such as DMSO would eliminate ice formation but at the price of severe toxicity. Mostly due to the groundbreaking work of cryobiologists Gregory Fahy and Brian Wowk, in the year 2000 the Alcor Life Extension Foundation introduced a vitrification agent called B2C that eliminated ice formation and had a more favorable toxicity profile. In the year 2005, the separation between the state of the art in experimental cryobiology and cryonics practice was further narrowed when Alcor introduced M22 as their new vitrification agent. M22 is the least toxic vitrification agent in the academic cryobiology literature that permits vitrification of complex mammalian organs at a realistic cooling rate.

M22 and other solutions derived from the same cryobiological principles have been validated in the brain as well. Former Cryonics Institute researcher Yuri Pichugin and collaborators used a related vitrification solution for the preservation of rat hippocampal brain slices without loss of viability after vitrification and rewarming. At a cryonics conference in 2007, 21st Century Medicine announced that the use of M22-based solutions permitted the maintenance of organized electrical activity in rabbit brain slices. So, at this stage we can argue that our existing vitrification solutions have a reasonable chance of maintaining organized electrical activity in brain slices. The next challenge is to demonstrate this property in whole brains.

Whole brain cryopreservation is not just the cryopreservation of a great number of individual brain slices. Brain slices can be cryopreserved by (step-wise) immersion in the vitrification solution. Vitrification of whole brains (even small brains such as rodent brains) requires the introduction of the vitrification solution through the circulatory system. This aspect of whole brain vitrification presents a number of technical challenges. Electron micrographs of vitrified tissue from whole brains, however, indicate that these challenges can be overcome. The current research objective is to perfect perfusion techniques and optimize vitrification solutions to maintain organized electrical activity in whole brains. We know that this objective is possible in principle because the famous surgeon Robert White demonstrated retention of electrical activity in whole isolated brains after cooling them to ~2-3°C. Isolated brain perfusion is a complicated surgical procedure, but the current writer and cryobiologist Brian Wowk have recognized that validation of whole brain activity is also feasible in situ.

Reversible cryopreservation of the whole brain without losing organized electrical activity is not a trivial research objective but it should be easier to achieve than reversible cryopreservation of the whole body and, perhaps, some other organs. If and when we accomplish this, we will no longer be dependent on “rationalist” arguments that appeal to logic and optimism about the future. We can argue that our patients should not be considered dead by the most rigorous criterion for determination of death in current medical practice. We can then even mount some smart legal challenges to seek better protection for cryonics patients. If we can make this step forward we should also aim at improved protection of existing cryonics patients, which will allow them, among other things, to own assets and bank accounts. This is how science can be employed in legal strategies for asset preservation.

This article is a slightly revised version of a paper that accompanied a recent presentation on neural cryobiology and the legal recognition of  cryonics at the 5th Asset Preservation Meeting in Benicia, California.