Who speaks for the dead?
Do the dead have rights, in the proper sense of the word? That is to say, when someone is obligated to do something with a dead person, like bury them, for whose benefit are they doing it? For the dead? Or for the living?
You might well ask, is this really important? In short, yes. The person to whom the obligation is owed is the person who may sue for enforcement of that right, and their identity may also determine the remedies which are available to them (be it money, compulsory performance of or abstinence from a particular act). So, the question of whose rights are engaged in dealing with the dead is fundamentally important from the cryonics patient advocate’s perspective.
An illustration: If you make a contract with someone, both of you intending that a substantial portion of what you have promised to do will only be done after (and in fact as a result of) your legal death, and vice versa that a substantial portion of what they have promised to do will likewise only be done after your legal death: who has promised what to whom?
While you remain alive, the answer seems quite obvious. But once you are dead, you are no longer a person. You, sadly, are not an entity recognized by law. You are your estate. Your estate has legal personality of a kind, but it is probably better to think of your estate as a medium. And, as such, it really isn’t about you anymore — it’s about your stuff, and who gets it. Yes, you can (and should, and hopefully do) have a will that references your cryonics arrangements, but practically speaking, the interest that your estate has in that contract you made for things to be done for you after you died, is the fact that something about that contract could result in more stuff for the estate’s beneficiaries. That’s really all the estate can care about, because the real, live person who was capable of having immaterial (or better still, “non-pecuniary”) interests in the contract is now gone.
But wait? How can the cryopreservation agreement (cat’s out of the bag — that contract was about cryonics after all) result in more stuff for the estate? Your cryonics service provider (CSP) didn’t promise to give anything, or pay anything. You, the patient promised to give something, and in fact cleverly entered into other contracts with other people to automatically transfer money to your CSP upon your legal death. So how could the cryopreservation agreement possibly represent a source of “stuff ” for the estate? Well, that’s because there were really two layers of promises — two sets of obligations in every contract. The top layer, or primary obligations, are what you actually bargained for. The secondary obligations are what the other party must do (or rather, pay) if they do not perform their primary obligations. These secondary obligations are the damages, and they are a part of the contract from the very beginning without anything being written about them.
So, the potential pecuniary ($) interest your estate has in the cryopreservation agreement, since your estate is just a medium that can only really have an interest in things and stuff, is in the failure of your CSP to do what it promised to do for you. And unfortunately for you, in cryonics there are no do-overs.
Hence why it is important to know who speaks for you when you are dead. The beneficiaries of your will, however friendly to your arrangements and well-intentioned they are, have no vested, personal, legal interest in the CSP’s performance of its primary obligations to you under the cryopreservation agreement. The executor of your will, on the other hand, has certain obligations to carry out promises made by you when you were alive, and (sometimes) to ensure that your body is dealt with as you directed by will or other instrument. The executor may even have an obligation to ensure that you remain interred as directed. But how long must they keep vigil? When they, too, are dead, does their executor now watch over the both of you? At a certain point (if not right away) this clearly becomes impossibly impractical. Alternately, if your CSP’s custody of your body was effected by a consent to body donation for research (which is the more robustly enforceable method, generally), even your executor has essentially no standing with respect to your body. And this is good, because above all else we trust that our CSPs want the same thing we want — and I have no reason to believe that is anything but true. But what if, someday down the road when your executor and next-of-kin are now in the dewar next to you, your CSP’s performance dips demonstrably below the threshold of “good faith best efforts”? Is there anyone who can claim authority to move you or to enforce performance of your CSP’s primary obligations under the cryopreservation agreement?
The above is not an exhaustive analysis by any measure. I write it hoping only that it will illustrate how peculiarly vulnerable cryonics patients are under the laws currently applying to them. What I plan to do with this column is explore intersections of law and cryonics & life extension (and there are many), and one theme I expect to visit frequently is cryonics patient advocacy. This is the issue of “who speaks for the dead” adverted to above, though in truth it starts long before legal death, and is more about how the dead or incapacitated can speak for themselves through legally recognized documentary evidence of their intentions: wills, trusts, powers of attorney (financial and health care), advance directives, consents to body donation, etc. However, all of these need agents to carry them out, and others still may seek to tear them down, so the more complex questions deal with how to build checks and balances into your supplementary cryonics documents and otherwise incentivize compliance of possible threats.
One specific topic I plan to look at soon: Just how uniform is the Uniform Anatomical Gift Act in its implementation by the various States? Are body donation consent forms executed under the authority of the UAGA enforceable outside America?
Another, somewhat related question: If a cryonicist executes a valid will in Oregon, moves to California, and dies there without executing a new will, but the original will does not comply with the formalities of execution applying in California, is the will valid — and if so, is it valid for all purposes, or only some? This is the domain of private international law, aka “conflict of laws,” which refers to how one legal jurisdiction deals with foreign legal elements: foreign parties, parties asking for application of foreign law, or foreign judgments. This is a particularly complicated area, but one which cannot be ignored, since so many cryonicists do not live in the same legal jurisdiction as their cryonics organization.
Another theme I will be exploring in this column is access to cryonics and other forms of life extension. In the case of cryonics, impediments to access can take the very blatant form of a law directly prohibiting it, or essential procedures thereof, or else operate indirectly, like mandatory autopsy provisions. Access to cryonics is also context-specific — taking on a very different meaning for someone diagnosed with a brain-threatening disorder, for instance. As such, the availability of legal assistance in dying is a topic which might be dealt with under this heading, and whether the practical benefits accruing to those patients outweighs the risks, both individually and to cryonics generally. How the law defines death, and public policy debates over whether to move to new definitions for reasons quite separate from cryonics, also fall neatly here.
Access to life extension, more generally, is also interesting to examine from a legal perspective. Are the current models of regulation applying to drug development sufficiently flexible to accommodate the advent of SENS-type rejuvenation therapies? One could say that cryonics aspires to being ordinary health care someday, at which time we can expect that it will be subject to some form of regulation. What should it look like? And how can cryonics organizations today best self-monitor and self-regulate to ease that eventual transition?
Finally, constitutional rights instruments have immense potential as tools for securing meaningful access to cryonics and other forms of life extension. However, the content and implementation of these fundamental rights documents vary throughout the world. Cryonics has fairly deep roots in America, but are we certain there is no better soil on Earth in which it might flourish?
All of the above areas of law overlap and interact, and there are other relevant ones that I have not mentioned (insurance law, notably), and no doubt a few I am not yet even aware of. I also plan to report on live cases of interest, as they arise.
One last, but significant point: due to variations between the laws of different jurisdictions (even within a single nation) you cannot simply assume that paperwork designed to work in one jurisdiction will work as intended in yours. You need to find a cryonics-friendly advisor where you live and have them review your cryonics arrangements, and revise them if necessary to work in your home jurisdiction. You are fighting for your life — you cannot afford to wear ill-fitting armor.
First published as a regular column called In Perpetuity in Cryonics Magazine, January 2013.