We Shall Overcome
Legal Approaches Toward Cryonics Patient Personhood
The current medico-legal definition of death creates numerous obstacles to the successful resuscitation and reintegration of cryonics patients: our ability to be cryopreserved under optimal conditions is restricted in the first place, and once cryopreserved, we are no longer legal persons, so we are only weakly protected from undesired interferences and we cannot continue holding property that we would like to have post-resuscitation. That said, the cryonics community is not the first to desire enhanced legal status and protection for its members. In this article, I will survey some instances of legal activism in historical and contemporary personhood movements, evaluating their success and applicability to the cryonics movement.
Personhood is important to cryonics because it is important to us right now, though we probably take the status for granted. Though it is not necessarily true to say all persons enjoy equal protection under the law, by default the level of protection (that is to say, the rules on others not to interfere) of persons is much higher. Furthermore, personhood is what gives us access to the legal system, and with it the ability to enter enforceable contracts with other people, own property and exclude others from the use of it. For cryonics asset preservation, this last feature is probably the most important, though protection of the patient from undesired physical interferences is still of paramount importance to the overall endeavor. However, while we take these abilities for granted as being features of our present personhood, not all persons have always enjoyed these, and not all beings who are currently persons were always so. There are also beings that are not persons that some argue should be, and some non-beings that are persons, that some argue should not be (corporations, and other “legal” persons). Generally speaking, there has been an expansion of personhood to include more beings in recent centuries, and also an increase in the protections afforded those beings (at least on paper). Some of these advancements have come about as a result of legal activism, i.e. members of the excluded or under-protected groups (or their advocates) petitioning courts either to recognize novel classes within existing definitions, or make principled alterations to historical criteria for membership. Other gains have been made through political activism, but this article will focus primarily on the role of legal activism in the expansion or attempted expansion of personhood to particular groups (slaves, women, fetuses and animals) and enhancements of protections afforded certain subgroups. The second part of this article will consider whether anything can be learned from these historical and contemporary movements, and look at opportunities for legal activism in cryonics. A follow-up article will look at a novel way that corporate (artificial) personhood could enhance the protection of cryonics patients and/or their assets.
In 1772, the English case of Somersett v Stewart set an important precedent in the global abolition movement. Three years prior to the case, a customs officer named Charles Stewart had brought a slave purchased in America back to England with him. The slave, James Somersett, escaped in 1771, but was recaptured and imprisoned by Stewart, whereupon three people claiming to be Somersett’s godparents by baptism in England applied for his release on the grounds that there was no lawful reason for his imprisonment. However, far from being based on humanitarian principles, the arguments put forward on Somersett’s behalf simply relied on the absence of any statutory or common law in England recognizing slavery (serfdom having been abolished over 600 years prior). Since the common law of contract could not bind a person absent their consent, Somersett’s imprisonment was unlawful, it was argued. Lord Mansfield of the Court of King’s Bench agreed with this argument, proclaiming that “the state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law.” Lord Mansfield held that the legal status of an alleged slave depended not on the law of the state where he or she originated, but on the law of the jurisdiction of the legal action, in this case England. Thus, while the institution of slavery was alive and well in America, a slave was free to withdraw from the service of his former master upon arrival in England.
The result is pleasing enough, but unfortunately for our purposes the decision avoids the hard moral, philosophical, and most of all legal question of what makes a person; rather, it presumes that in the absence of a law declaring him to be anything else, Somersett was a person and not property. The arguments based on contract law relied on this—after all, property cannot enter into contracts in the first place. No reasoning was put forward by the plaintiffs, nor considered by the court, as to what qualities distinguish a person from property, either in the abstract or in the specific context of an American slave of African descent.
Not long after Somersett’s case, the United States did enact positive law recognizing slavery, in Article Four of the United States Constitution: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.” This law was essentially an answer to the decision in Somersett’s case (which, while not binding on the States, was still an open question there), as between the slave states and the free states. The U.S. abolition movement did not reach its boiling point until 80 years later, with the case of Dred Scott v Sandford, (1857). Mr. Scott sued for his freedom on grounds that he and his master had resided for a time in a state where slavery had been banned, but the Supreme Court of the United States held that as a person of African ancestry, Scott was not a citizen of the United States and had no right to sue in federal court (notwithstanding the fact that free blacks in some states did enjoy the rights of citizens of those states). According to Chief Justice Taney, the drafters of the U.S. Constitution viewed all blacks as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which white man was bound to respect.” Unsurprisingly, the Chief Justice is not taking personal responsibility for the morality of this position, merely declaring it to be the intent behind the law he is bound to apply.
Now technically, the jurisdictional issue in Dred Scott turned on the question of citizenship, not personhood, as this was the language of the relevant section; however, in obiter dicta, Chief Justice Taney also held that the Fifth Amendment prevented any law from depriving a slaveholder of his property, such as his slaves, upon the incidence of migration into free territory. It is implicit to this holding that slaves were no more persons than they were citizens.
The essential reasoning of Dred Scott was: (1) the being talking to us needs to be a citizen for us to listen; (2) a citizen is what the people who chose that word when drafting the statute would have meant by citizen; (3) historical analysis reveals the drafters would not have considered you a citizen because you are a Negro descended from a slave; therefore (4) you are not a citizen. The English decision, on the other hand, simply presumed Somersett to be a person in the absence of any positive law making another status possible, without explaining why (this may not be that surprising, however, since there were, at the time, free blacks in England). Both courts let slip the opportunity to expound upon the qualities of the being before them that are, or would be, necessary and sufficient to a finding of personhood, even though such a finding was a necessary prerequisite to the disposition of each case.
Ultimately, it took a constitutional amendment subsequent to the American Civil War to elevate the status of American slaves to persons and citizens. However, in stating that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” the Fourteenth Amendment does not actually accord slaves freed under the Thirteenth Amendment the status of personhood—like Lord Mansfield in Somersett v Stewart, their personhood is simply presumed.
Of course, neither personhood nor citizenship guarantee equal protections and participation in public life. Women, for instance, were recognized as citizens of the United States falling within the meaning of the 14th Amendment in Minor v Happersett (1875), which as we’ll recall requires an implicit finding of personhood, but the decision in that case held the right to vote was not one of the “privileges or immunities of citizens of the United States” when the Fourteenth Amendment was adopted (1868). Indeed, at the time the 14th Amendment was adopted, in many places women actually lost legal rights under local marriage laws—among those the capacity to own property. And once more, a constitutional amendment—a political achievement as opposed to a legal one—was required to enhance the status of women to equal footing with men on the issue of voting (19th Amendment, 1920).
However, the question of women’s personhood was directly considered in the Canadian case of Edwards v Canada (AG) (1929), aka the “Persons case.” At issue there was whether the phrase “qualified Persons” in Section 24 of the British North America Act (the precursor title of Canada’s Constitution), in reference to senate appointments, included women. The Supreme Court of Canada found that based on (i) the usage of the word “He” in the nearby section detailing the necessary qualifications, (ii) the historical intentions which could be imputed to the drafters of the of the Act, and (iii) the common law incapacity of women to exercise public functions at the time, women were excluded from Section 24.
Luckily, the Supreme Court of Canada was not the final say in the matter at that time, and the case was appealed to the Judicial Committee of the Privy Council in England. Overturning the decision, Viscount Sankey ruled that “[t]he British North America Act planted in Canada living tree capable of growth and expansion within its natural limits… Their Lordships to do not conceive it to be the duty of this Board… to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation….” But once again, the Privy Council’s decision on the definitional matter at issue doesn’t actually consider whether women are in fact persons, and why, but rather whether the term “person” in that context impliedly excludes “female persons.” Instead of being about what makes a person, the debate turns on what kinds of persons the drafters meant by “persons.” It assumes that women can be persons, either if those responsible for drafting the document giving persons certain capacities meant to include female persons, or, in the Privy Council’s opinion, by default unless exclusion is explicit. This is still a textualist interpretation, just a progressive one as opposed to originalist. But it most certainly isn’t semantic—that would require an examination of what qualities define personhood.
Perhaps we need to go looking for a case that forces the “qualities” of personhood into determination. In the landmark abortion/fetal rights case of Roe v Wade (1973), the respondent argued that a fetus was a person within the meaning of the Fourteenth Amendment, guaranteeing its right to life. In its decision, the U.S. Supreme Court noted that the Constitution does not define “person,” and found that there was no intra-textual support for a pre-natal interpretation, nor any legal precedent to support this interpretation either. But then, instead of addressing the issue head on, Justice Blackmun wavers, saying “[w]e need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate.” Nevertheless, it is apparent he is tempted at the prospect, responding to the conception theory of the beginning of life (and personhood) by pointing to the problems with this view caused “by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs.” So this court is not averse to scientific evidence suggesting the question is not as black and white as alive-person vs. non-alive-non-person, but it only applies that evidence one way, to prop up its “legal” conclusion that personhood has always begun at birth. The same process-not-event reasoning could just as easily be applied on the other end, i.e. in the days shortly before birth, against the argument that life and personhood begin at birth—especially since birth can occur prematurely both naturally and as a result of artificial inducement. But Justice Blackmun prefers his concept of the “potentiality of human life,” in which the State’s interest matures to the “compelling” threshold upon viability of the fetus. So, despite not meeting the definition of personhood (however arbitrarily derived), an intermediate category is carved out for the fetus and granted some protection. (Note also that there is a long history, emanating from English law, that a fetus can have a defendable interest in property that is contingent upon its being born.)
In the decades since Roe v Wade, a number of attempts to enact “personhood amendments” at the state constitution level have mostly failed to gain traction. However, in March 2012, the North Dakota House of Representatives passed an amendment to its constitution that “the inalienable right to life of every human being at any stage of development must be recognized and protected.” Reactions to this have included concerns that such a drastic redefinition would effectively outlaw not only abortions in all circumstances, but many reproductive technologies that involve production, storage, and disposal of excess embryos. It remains to be seen whether this amendment will survive a challenge founded on the U.S. Constitution and Roe v Wade. Nevertheless, political activism appears a more viable option for activism than legal challenges.
Of course, while fetuses’ presence at the blurry category boundary between non-life and life has obvious analogical relevance to cryonics patients, it is not a perfect model because it involves a presently unavoidable contest between the fundamental rights of two beings, the mother’s and the fetus’s (that is, if rights are imputed to fetuses at all). The question of non-human animal personhood does not pose this same issue, and there have been a number of interesting developments regarding the legal protection of these beings. However, despite how these are usually reported, none have granted “rights” to any animals, nor conferred upon them the personhood they would require in order to have rights, in the legal sense. Rather, of the numerous reports of non-human animals being granted rights, what has in fact occurred includes: (i) constitutional recognition of the “dignity” of animals, which need be considered by the state in regulating research activities (Switzerland, 1992), (ii) somewhat vague imperatives to protect animals by legislation (Germany, 2002), and (iii) expanded protections of some classes of animals, like the great apes, preventing their use in research or testing (New Zealand, 1999).
Attempts at legal activism towards non-human animal personhood have been less successful. In Citizens to End Animal Suffering and Exploitation v The New England Aquarium (1993), the Massachusetts district court held that Kama the dolphin lacks standing to maintain an action under the Marine Mammal Protection Act, as the Act only authorizes suits brought by persons. As we should be coming to expect by this point, the decision simply accepts as a foregone conclusion that animals are not persons without asking why. Similarly, in Cetacean Community v Bush (2004), the Ninth Circuit Court held that “the Cetaceans do not have statutory standing to sue,” as they are not persons— no deeper questions asked.
Nevertheless, the will behind these suits is strong. An organization called GRASP (Great Ape Standing & Personhood), hosts a model legal brief on its website titled “From Property to Person—The Case of Evelyn Hart,” however, the organization is not very active, and the brief itself has not been used. Much more impressive is the Nonhuman Rights Project (NHRP), headed by Steven M. Wise. The NHRP is working to identify American state jurisdictions that may be most receptive to animal personhood arguments, and which have retained the old, common law causes of action used by human slaves and their advocates to challenge their “unfreedom,” namely the writs of habeas corpus, and de homine replegiando. Wise sums the objective and strategy up thusly:
“James Somerset’s legal transubstantiation from thing to person at the hands of Lord Mansfield in 1772 marked the beginning of the end of human slavery. Persuading an American state high court to similarly transform a nonhuman animal is a primary objective of the Nonhuman Rights Project…. A court confronted with a plaintiff’s claim to possess any legal right need only determine the plaintiff’s species. If the plaintiff is human, the answer is, ‘It is possible that the plaintiff has the legal right she claims.’ If the plaintiff is a nonhuman animal, the answer is, ‘Impossible.’ The goal of the interdisciplinary Nonhuman Rights Project is to change this paradigm. It intends to demand that American state high courts declare that a nonhuman animal has the capacity to possess at least one legal right, to declare that she is a… legal person. Once a court recognizes her capacity, the next legal question is… which legal rights she should possess, an appropriate shift from the irrational, biased, hyper-formalistic, and overly simplistic question, ‘What species is the plaintiff?’ to the rational, nuanced, value-laden question, ‘Does the plaintiff possess the qualities relevant to whether she should be entitled to the legal rights she claims?’ ”
Whether one supports this objective or not, the approach is certainly admirable, and the relevance of the project, and other personhood initiatives to the issue of cryonics patient personhood cannot be denied.
In the slave cases we see courts avoiding the question of what makes a person, deferring to legal precedent, historical context and textual analysis; we see the same in the women cases, the fetus cases, and the animal cases. Even though on occasion the decisions flow with the progressive expansion of personhood instead of against it, there is definitely a resisting inertia, especially in the cases where the claimants cannot speak for themselves (fetuses, non-human animals). Generally, it appears that political activism reaps the greater gains, especially, of course, where the status quo is entrenched in statutory law as opposed to common law, as it was in the status of slaves in the U.S.
In light of this, it seems that achieving reclassification of cryonics patients to persons through the courts would be somewhat unlikely at this juncture—not that anyone is seriously advocating for it right now. However, looking at the allimportant fetal rights case, Roe v. Wade, we do see some willingness to consider scientific data that threatens previously binary legal concepts of life and death, and also to carve out intermediate categories therein which receive enhanced protections. Because courts have been so reluctant to comment on what qualities make a person, it is not easy to say what kind of evidence would need to be brought in order to carve out a similar intermediate category for cryonics patients. I would hazard a guess that the “potentiality of life” would need to be known, and I think this goes further than retrieving organized electrical activity from cryopreserved brains. I think whole animals would need to be resuscitated from cryopreservation—with return of cognition and “personality.” Then legal arguments could be made that humans cryopreserved with the same process (or close), who are not yet being resuscitated because the procedure needs to be refined before it would be ethical to attempt on humans, contained the same “potential” for life, and should receive some heightened protection from interferences. The capacity to have contingent interests in property might also be obtainable at this point.
Otherwise, as we see from history, political activism remains an option. And cryonics patients do have the advantage of being able to speak out for themselves prior to becoming voiceless patients. What we lack, currently, is numbers, both in actual membership and also moral supporters. Hopefully that will change as time goes on, but in the interim there are still opportunities for legal activism and innovation that would increase the protection of cryonics patients, both before and after cryopreservation, as well as the protection of their assets. Attempts by governments to regulate cryonics represent possible opportunities to bring constitutional challenges on the basis of cryonicists’ liberty and freedom of belief. Corporate personhood may also present a bootstrap solution to some of the problems caused by cryonics patients’ loss of personhood, which I will address in a future article.
First published as a regular column called In Perpetuity in Cryonics Magazine, July 2013.