Tag: Hostile Relatives

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.

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.

The presumption of death

Bertrand Russell once said that “most people would sooner die than think; in fact, they do so.” One does not need to look any further than the many responses to Kerry Howley’s recent article about cryonics and hostile partners in New York Times Magazine to find support for Russell’s witty remark. One commenter suggested that “an easy solution would be to just agree with him all the way to the grave. Then bury or cremate him. He’ll never know.” Such a cruel attitude may not be completely representative of what most people think about spousal disapproval of cryonics but it cannot be denied that some hostile partners and relatives have exactly responded in this way when faced with the legal death of a family member who had made cryonics arrangements. As a matter of fact, even indifference to a partner’s cryonics arrangements is a source of problems because the decreased sense of urgency, and a general unwillingness to assist with even the most basic cryonics first-aid procedures, produces substantial ischemic damage. Interfering with an individual’s cryonics wishes raises serious ethical questions because someone’s chance of survival has been reduced from a positive probability to zero.

Peggy Jackson, Robin Hanson’s wife, wonders “what’s so good about me that I’m going to live forever?” This is a strange presumption to make about life and death.  Our culture generally does not have this presumption about moral worth and non-existence. As a general rule, we do not feel that someone has to justify her reason to seek medical care and try to remain alive. The argument is even less relevant in the case of cryonics because cryonics is not publicly funded. It is also a persistent misunderstanding that the objective of cryonics is immortality. It cannot be denied that some who have chosen to make cryonics arrangements have a desire for immortality but both major cryonics organizations simply present cryonics as an experimental medical procedure to treat terminally ill patients who cannot be sustained by contemporary medical technologies. As such, there is no credible rationale to depart from the presumption in favor of life that is implied in today’s medical practice.  “What is so bad about me that I should not seek an experimental medical procedure like cryonics?” should be the obvious response when the presumption of death is made.

‘Choose life at any cost,’ ” Peggy says. “But I’ve seen people in pain. It’s not worth it.” We can agree that people should not choose life at any cost, but what is often ignored in discussions about cryonics is the rather obvious point that cryonics patients will not be resuscitated in the painful and debilitated state of a terminal patient but in a rejuvenated body without the disease the patient suffered from. Without such a condition for resuscitation, cryonics would be an exercise in futility.

One can only agree with bioethicist James Hughes that “there is a lot of ancient cultural stereotyping about the motives and moral character of people who pursue life extension”. In a number of posts on Overcoming Bias Robin Hanson himself has commented on the New York Times Magazine article. Robin draws an interesting parallel between the practice of Sati (“a funeral practice among some Hindu communities in which a recently widowed woman would either voluntarily or by use of force and coercion immolate herself on her husband’s funeral pyre) and objection to one’s partner’s cryonics arrangements.

Interestingly, Robin Hanson also seems to believe that a major source of anxiety about cryonics is fear of the future. Cryonics has “the problem of looking like you’re buying a one-way ticket to a foreign land.” Robin further thinks that a lot of the opposition to cryonics is driven by the possibility that it might actually work. After all, “If people were sure it wouldn’t work there’d be no point in talking about selfishness, immortality, etc.  If the main issue were a waste of money we’d see an entirely different reaction.” This suggests that cryonics organizations could benefit from altering their public relations strategies. Less emphasis on discussing technical feasibility and more emphasis on dealing with anxiety issues.

The libertarian economist Bryan Caplan always gives cryonics serious consideration but sometimes has the habit of starting his discussion of the topic on a wrong note by discussing the most outlandish resuscitation scenarios instead of just focusing on the most basic form of cryonics; resuscitation of the same physical person that has been cryopreserved. Caplan seems to  be quite interested in the question of what the odds of cryonics working are. Aside from the obvious rejoinder that the odds are much lower than they could be if cryonics was permitted as a pre-mortem elective medical procedure, the point needs to be reiterated that a small dedicated group of people can substantially increase these odds through scientific research and the creation of robust cryonics organizations.  Cryonics is not just an issue of determining fixed probabilities but also about supporting the idea and participation to increase the odds of meaningful resuscitation of people who have been written off by today’s medicine.

Cryonics is decision making under certainty par excellence. If you cannot stomach any kind of uncertainty, cryonics is not the best decision for you. As the mathematician, and current Alcor patient, Thomas Donaldson has said: “There is an IRREDUCIBLE UNCERTAINTY which is basic to cryonics , not merely an adventitious consequence of our ignorance about how memory is stored.” In his article Neural Archeology Donaldson recommends that “if you’re involved in cryonics, you’ve got to make your peace with the unknown, because it will always be there. You’ve simply got to make your peace with it.”

The one silver lining of the recent discussion of partner hostilitily to cryonics is that there has been an increasing recognition of the need for financial and legal strategies to prevent catastrophic interference with one’s cryonics arrangements.  Some of these strategies will be discussed in an upcoming issue of Alcor’s Cryonics Magazine.

Ten ways to avoid being the next cryonics legal case

Several of my clients and friends have asked me for observations regarding securing their cryonics arrangements even with contrary wishes of friends and relatives.  Given the recent Mary Robbins case in Colorado, and multiple previous cases available in some detail on the websites of both CI and Alcor, structuring your affairs in the most secure manner currently has top of mind awareness for many who are serious about their cryonics plans.

The purpose of this article is to provide some insight into how serious cryonicists can structure their affairs to assure themselves they have done everything possible regarding funding and legal structures for their optimal suspensions.

For ease of reference, I will number the following points.  There is some attempt to put the most important or easy to handle considerations early in the list.  For simplicity, I will avoid the usual lawerly weasel clauses, except to point out that the following are generally, as opposed to universally, true, and that they apply for United States cryonicists rather than all global citizens.

1.  Fund…and overfund…your suspension with life insurance.  This assumes you are insurable.  Life insurance proceeds go DIRECTLY to your named beneficiary, without taxes or reductions or delays of probate.  More importantly, the funds are created in addition to your estate and do not reduce your estate otherwise going to your heirs.  It is no longer perceived as a “zero sum” game where your heirs are in direct competition for funds vs. the cryonics organization.

I am not aware of a single suspension that was delayed for funding considerations when there was adequate life insurance in place in a verifiable manner.

Not one, in the history of cryonics, which is now extending some 40 years.

In contrast, there have been multiple cases of delay, obstruction, interference, and legal wrangling in cases without adequate and extra life insurance funding.

2.  Have your policy owned…or jointly owned…by the cryonics organization.  This enables the cryonics organization to KNOW at any given time that your policy is in force with no changes to the beneficiaries, and no reduction caused by a loan against the cash value the policy may have. Alcor generally requires this, and CI funding that includes Suspended Animation arrangements also requires cryonics organization ownership.

3.  If you trust your cryonics organization with your life, you want to see them do well.  It therefore makes sense to make them the “CONTINGENT” beneficiary as well as the primary, even if you cannot be suspended. Alternately, you can name any other person or persons, or a charitable organization, as contingent beneficiary.   Naming your cryonics organization as the contingent even if you cannot be suspended is not ideal, in that it reduces financial incentive of your cryonics organization to suspend you.  But it is still probably better than naming family members or someone you are not completely convinced will support your cryonics plans.

The important thing you want to AVOID is creating a structural CONFLICT OF INTEREST in which your family or relatives get the money if they talk you out of your cryonics arrangements.

4.  The question has come up as to whether an alternate beneficiary, or even a primary, needs to know they are in this position.  The answer is that the beneficiaries do NOT need to sign any portion of the application, and won’t even know they are listed as beneficiaries unless you tell them.

5.  For cash–as opposed to life insurance–funding, the optimal secure funding is some form of a GUARANTEED annuity.  The cryonics organization need not be the OWNER of the policy if they are listed as the IRREVOCABLE BENEFICIARY.  Variable annuities, even with underlying income guarantees, will not work because the death benefit and principle are not guaranteed to be there when needed.

Annuities with named beneficiaries also avoid probate, although there can be some taxable considerations, unlike life insurance.  The annuity also must waive surrender penalties upon death, to assure the cryonics organization full funding.

6.  Any alternate funding, such as real estate, stocks, bonds, mutual funds, hard assets, collectibles, is a disaster for you, your cryonics organization, and the entire field of cryonics, waiting to happen.

It astounds me that smart individuals signing up for cryonics do this.  And that any organization deeming itself a serious cryonics alternative, will allow insecure and unverifiable and illiquid funding of this nature.  Do you want to have your family and relatives contesting your cryonics arrangements?  Do you want your cryonics organization to wait over the weekend, or over the holiday, or till the next business day till they confirm your funding?

You are virtually guaranteeing that there is a delay, of hours, days, or weeks, while funding is ascertained, when literally seconds and minutes count, if you fund with these assets.  Call up and ask your cryonics vendor what would happen, and when, given your current funding arrangements.

7.  Be public with your cryonics arrangements.  It is time for serious cryonicists to come “out of the closet.”  Like some courageous gays and atheists have demonstrated, it is time we become “loud and proud” of ourselves and our choices.

8. Make a video of your strong preference for cryonics.  Include verbiage that states your decision is unequivocal and firm, and made when you were of sound mind.  Also specify your wishes that any revocation made later should be ignored if it is made while under pain medication, or while physically or emotionally ill, or under undue influence by outside parties including family and friends.  Have multiple copies made, upload it to the net, provide abundant and clear instructions so that even jackass attorneys and judges can’t fail to get the message.

9.  Moving near your cryonics vendor if you are deathly ill is logical. Alas, it is often not done due to people wanting to be in their homes and with their families when they are dying.  Some progress has been made in developing a community of support near cryonics facilities.  David Pizer and Mark Plus have worked for years to develop a cryonics friendly center near Alcor, and I have heard talk of some shared housing arrangements near the Cryonics Institute.

10.  Talk–have “the talk” with your family and friends, showing them your cryonics bracelet and expressing your wishes.  Get their commitments that they will not undermine your wishes, ideally in writing in a “relatives affidavit” available from your cryonics vendor.

Discuss different scenarios of your “death,” and what protocols and logistics would be involved in providing the optimal suspension to preserve your precious self.  You are worth it!  You deserve to see the future…or at least have some non-zero chance to see the future.  Don’t pay ALMOST enough price to give cryonics a chance…pay the FULL price!

Doing all the above will not guarantee a perfect suspension, and even an “optimal” suspension has no guarantees.

Folks, we are trying to be smart about our life decisions, and our life and death decisions.

You have been smart enough to research cryonics and perhaps sign up for cryonics.  Let’s be smart enough, and display enough common sense, to give ourselves every chance of something like an optimal suspension.

How to protect yourself

There has been some discussion about relatives causing suspensions to not take  place as the cryonics member gets older and how we cryonicists can protect  ourselves from this happening.

Suspension interference happens more then most cryonicists realize. As a retired member of Alcor management I have seen a lot of it.  Sometimes relatives  cause the suspension to not take place by interfering at, afterward or just  before legal death.  When this happens, the cryonics community knows that a relative interference has taken place.

But much more often, the interference takes place long before legal death as the suspension member grows old and mentally fragile.  Little by little over time,  the relatives encourage the member to cancel his/her membership.  One day the  dues quit coming into Alcor or CI and neither Alcor nor CI really know why the  person is no longer paying dues.  They try to contact the member but often the  relatives can block that from happening.  If they do make contact with the  member, the member gives them an excuse that they think will cause Alcor or CI  to drop the matter, at the relatives’ urging or suggestion.  They rarely tell  Alcor or CI the real reason, specifically that their relatives have talked them  out of it.

Then after suspension arrangements have been canceled, the relatives talk the  ex-member into changing the beneficiary on the insurance policy and that is the  end of their chances for a successful suspension.

All one has to do is look at how many people have dropped their membership after all the work and expense of signing up for cryonics to see that this is  happening every month of every  year.

You say it won’t happen to you!

Maybe so but maybe it will.  Because when you grow old you lose some of your  ability to think clearly.  Little by little your relatives gain control of your  thinking process.  They are their in your home or community working on you day  and night to cancel your cryonics – or if you lose enough mental ability, they  simply take over your affairs.

You think your relatives will continue to honor your wishes as you grow old?

A lot of them will tell you to your face that they will, but in reality they  believe that cryonics is a waste of your time and your money.  So they have no  moral reservations about causing you to cancel your membership and have the  money go to them if and when they get a chance to take over.

How can you protect yourself?

Make sure that your life insurance policy says that if you don’t get suspended  for any reason that the proceeds still go to your cryonics organization and not  your relatives.  So there is no financial incentive for the relatives to cause  you to cancel your arrangements.

Put a clause in your will that says that if you don’t get suspended that all your estate goes to your cryonics company and not your relatives so that there  is a financial incentive for your relatives to see that you do get suspended.

Maybe have two beneficiaries on your life insurance policy.  One is your  suspension company and the other is your relatives.  If you get suspended Alcor  or CI gets their money and your relatives get some too.  If you don’t get  suspended then Alcor or CI get all the money and your relatives get nothing.

Make a video of your wishes and send it to your cryonics organization to keep in case there is trouble when you get old and infirm.

Help create a cryonics community where older  cryonicists can live until their  suspension time.

The ethics of cryonics interference

Advocates of human cryopreservation argue that death is not an event but a process. Cryonics patients are stabilized at low temperatures in anticipation of a second medical opinion in the future. This raises an important ethical issue. What is the moral status of cryonics patients? It is not possible to argue that cryonics patients will be resuscitated in the future. But it is not possible to categorically rule this out either. As a matter of fact, evidence from cryobiology, neuroscience, and synthetic biology support the technical feasibility of cryonics. As a consequence, cryonics patients are somewhere on a continuum between alive and irreversible biological death.

What does this mean when someone interferes with a person’s wish to be cryopreserved? In essence, those who successfully prevent the cryopreservation of a person have altered the probability of future revival from “possible” to “impossible.” For example, let us assume that cryonics patients can be resuscitated in the future. What does this mean for those who were not cryopreserved because of hostile interference? Have they been killed? Most people would agree that such a verdict is too strong. But do we believe that a person who knowingly changes the prospect of future revival from possible to impossible (or decreases those probabilities by causing delays) should be free from moral blame and legal consequences?

A related problem is the termination of cryonics procedures. Advocates of cryonics agree that a person who has not chosen for cryonics should never be forced to be cryopreserved. But what is the right course of action when such a person is already cryopreserved? Can we just thaw him out? Let us consider the case of a person with a Do Not Resuscitate (DNR) order who is accidentally resuscitated because paramedics were not aware of his wishes on the matter. Few people would argue that this person should be killed before he gains awareness to honor his wishes. Now let us consider a situation where it is discovered that a person was cryopreserved against his will but at a point in the future when the prospect of resuscitation becomes increasingly likely. In such a case, the issue would be similar to a resuscitated DNR patient in deep anesthesia.

This example illustrates a number of issues. There is a meaningful distinction between ignoring someone’s wishes not to be cryopreserved and terminating the cryopreservation of an existing patient. Honoring a person’s wishes not to be cryopreserved requires non-interference. Thawing out an existing cryonics patient is an act to change someone’s existing chance at revival from possible to impossible. The example also illustrates the role that probability of resuscitation plays in such considerations. Few people would argue that it does not matter at all how credible resuscitation of cryonics patients is for making decisions about the  moral status of cryonics patients, interference with cryonics procedures, and the decision to terminate somebody already in cryostasis.

We want certainty in a universe that only offers us probabilities. The ethical and legal issues surrounding cryonics are not unique to cryonics. It is not just in cryonics where issues of moral obligation are discussed in the context of uncertainty, probability and risk. It will be rewarding to review these philosophical and legal debates and see how debates about interference with cryonics can be framed from these perspectives.

In the meantime, people who have made cryonics arrangements are not completely powerless against hostile interference. They can alter their cryonics paperwork and living will to ensure that there is little incentive for greedy relatives to interfere. As a matter of fact, one could change one’s “last” wishes to ensure that interference would trigger the worst financial outcome for greedy family members and others who would stand to benefit from a person not getting cryopreserved.

Buried alive?

According to this news item the Alcor Life Extension Foundation is taking legal action against the brother and sister of an Alcor member who “denied the foundation’s request for his body and didn’t notify them of their brother’s death until months after he was buried.” Although some may question the wisdom of pursuing this case in light of the current condition of this Alcor member, Alcor is honoring its contract with the member. As Reason points out in this excellent post about the issue:

I can only imagine that the lawsuit is being undertaken as a point of principle and for the purposes of education: don’t break contracts with Alcor or this will happen….Switching around a family member’s post-mortem arrangements is little different from bullying and controlling folk who are too old and frail to defend themselves. In the case of acting to prevent cryopreservation that was organized and chosen by the deceased, it becomes something like fractional murder: removing that person’s shot at whatever the unknown probability of future revival happens to be.

Spouses and relatives of an Alcor member should not feel confident that if they hide the death of an Alcor member long enough to make cryopreservation no longer meaningful or practical that the cryonics organization will just give up and refrain from pursuing the case. There have been too many cases where hostile, greedy, or indifferent relatives have frustrated the wishes of a person who wants to be cryopreserved. Cryonics organizations should not even give the semblance that this is something they let people get away with. Alcor is to be commended for fighting back and honoring this member’s wishes, even in the most miserable of circumstances.

This episode should be another important wake-up call for potential and existing members of cryonics organizations. There are various  ways situations such as these can be minimized and we should start thinking about them. Most of all, cryonics members should execute living wills that rule out scenarios where greedy relatives will benefit from the patient not being cryopreserved. Furthermore, cryonics members should execute a Durable Power of Attorney for Health Care to ensure that the person who is authorized to make medical decisions on the cryonics member’s behalf has a strong commitment to honoring this person’s wish to be cryopreserved. This often will require giving this authority not to the person who is closest to you but to the person who  is most knowledgeable and respectful of  your cryonics arrangements (such as a long time friend with cryonics arrangements). Last, but not least, cryonics organizations should further expand their methods of determining high risk cases and improve communication with existing members. Although it is not possible, nor reasonable, to expect from cryonics organizations that they can avoid scenarios such as these in every single case, there is an urgent need to beef up membership tracking and response capabilities.

Cryonics organizations are in a delicate situation. We expect them to fight for each of their members without putting existing patients at risk. One solution that has been pursued in the past, and may have to be revived again, is to separate the service delivery aspect of cryonics from long term patient care. If such changes would allow more aggressive action on behalf of existing members with no, or decreased, risk for existing patients, such changes should be pursued.