'Cryopreservation and current legal problems: seeking and selling immortality' by Alexandra Mullock and Elizabeth Chloe Romanis in (2023) 10(2) Journal of Law and the Biosciences comments
Cryonics, the ‘freezing’ of the human body after death in the hope of reanimation in the future, remains a remote possibility, and yet it is becoming a more popular choice. There has been much academic discussion of the ethics of cryopreservation; however, the legal problems have received little attention. There are, however, several potential current conflicts that might arise, as was illustrated by the case of JS in England, in which a 14-year-old girl who sought cryopreservation against her father’s wishes. In the USA, there have been disputes within families about cryonic preservation, and between cryonics organizations and loved ones of the deceased when there is negligent preservation. Cryopreservation raises questions concerning the law on death and posthumous interests, property in the body, contract law, and (potentially) negligence. We argue that, in the absence of proper regulation, cryonics organizations may be able to exploit the dying and dead. The potential legal problems that we have identified in relation to the law in England and Wales demonstrate that the law is ill-equipped to protect the interests of the dead and their next of kin.
Waking the dead after cryopreservation remains science fiction. While freezing human cells and tissue is well established in medicine—particularly freezing gametes or embryos for fertility treatment—life after death via cryopreservation remains impossible. Despite the state of the science, people are opting for this technology and entrusting their ‘remains’ to cryonics companies, and interest in doing so is increasing. Individuals can arrange for either their entire body or their head to be frozen after death, and thereafter preserved with the hope that reanimation (and cure) is eventually possible. The question of whether such a hope will ever be fulfilled is not our concern and this article does not attempt to engage with unknown futures and science fiction. Rather we are concerned about the current legal uncertainty over preserving the dead in this way and the potential for legal conflict this raises for the living relatives of the deceased in the present. In this paper, we consider the legal uncertainties in the jurisdiction of England and Wales.
An example of conflict over cryopreservation was seen in Re JS, in which a 14-year-old-girl with a rare form of terminal cancer successfully sought a court order to allow her body, after death, to be cryonically preserved without the approval of her estranged father. While this case set no precedent approving or encouraging cryonics, questions about the way the process would be handled prompted Jackson J to conclude that proper regulation of cryonics was needed. As JS illustrated, the current law is struggling to accommodate the cryonic process, the interests of those preserved and their relatives. The conflict in JS reveals how those with an interest in what happens to the body of a deceased relative may seek to prevent cryopreservation. Moreover, because the process and maintenance of cryonics involves an ongoing obligation to preserve the body of the deceased, whose legal rights died with them, questions arise, and are addressed in this paper, over the nature of any legal obligations to the next of kin and importantly, who has the legal right to possess the preserved body or head in the event of a dispute.
While the ethics of cryonics have been considered in some depth, the legal questions have received less attention. Perhaps this is unsurprising. Conway takes the view that so few people in the UK are choosing cryonic preservation that regulating to address such rare needs is ‘not such an urgent task’. However, we believe that examining the issues to better inform the debate before regulation becomes a more urgent task is a worthwhile exercise. Some people are already using this technology, and the potential for legal problems and conflict is significant. Many of the legal issues we explore in this article are speculative, but such an investigation is necessary to consider what may be problematic about cryonics, and to consider potential legal solutions. Furthermore, because of the importance attached to respecting the wishes and the remains of the dead, and the logistics of preserving and storing the dead in this context, cryopreservation raises particularly sensitive and potentially disturbing issues. Such issues require thorough consideration before a court is compelled to resolve a dispute concerning cryopreservation.
There is nothing to prevent individuals in England and Wales from choosing cryonic preservation after death, provided they can pay for it and make the necessary arrangements to be frozen and stored at a cryonics organization. There is, however, somewhat of a legal vacuum when it comes to the potential legal problems or conflicts between interested parties surrounding cryonic preservation. Consequently, it is important to examine problems that have arisen — in Re JS and in the USA — and to speculatively consider foreseeable legal problems related to use of technology in advance of such conflicts materialising in the jurisdiction of England and Wales.
In this article, we first consider how the initial arrangements are conducted with the relevant organizations and the challenges of ensuring that cryopreservation ensues, particularly in England and Wales. These complications may arise while the person intending to become a cryon is still alive/dying and thus is a legal person. We then discuss ‘conflicts about cryopreservation’— namely, what happens where family members oppose cryopreservation (even though favored by the dying/dead individual), or where the state has requirements for bodily treatment/investigation after death, or, if a problem arises with the process immediately after death. We then consider ‘conflicts in preservation’—namely, disputes between the dead/their next of kin and cryonics organizations where there is a failure to cryonically preserve a body, or the process is in some way negligent. All these disputes are complicated because they often occur once the person who had wanted to be preserved is no longer alive, and thus no longer a legal person. Finally, we consider ‘disputes after preservation’—these are primarily questions of who, in the event of a dispute, has the right to possess, or perhaps ‘own’ a cryopreserved body when that body (definitively no longer a legal person) effectively becomes a chattel. While the general rule is that the body is not property, we argue that cryonic preservation could transform human remains into property. While the family initially has a strong claim in deciding what happens to the body in terms of how the body is disposed of, once the cryonic organization takes possession and exercises skill in preserving the body, the issue of ownership becomes unclear.
As Re JS illustrated, people may opt for cryopreservation as a way of dealing with or processing their death, perhaps as a means of obtaining some comfort and hope about the end of their life. Our analysis demonstrates that this choice makes them incredibly vulnerable in several ways. We highlight how, without proper regulation in a number of areas, cryonics organizations are able to exploit the dying and dead, and potentially also create significant legal problems, with associated emotional distress, for the family of the deceased person.
'What Remains? Human Rights After Death' by Claire Moon in Ethical Approaches to Human Remains (Springer, 2020) 39-58 comments
This chapter is concerned with the human rights of the deceased victims of mass atrocity. It addresses these rights in the context of forensic anthropological work to establish the individual and collective identities of the victims. This work became historically and politically signi cant in the later decades of the twentieth century in the context of attempts to determine the numbers, identities, and cause of death of victims of state crimes and violent con ict, return their bodies to family members, and contribute evidence to legal trials for crimes such as crimes against humanity, genocide, torture, and enforced disappearance. Key amongst these efforts were attempts to recover and establish the identities of the dead who were subjected to torture and enforced disappearance in Argentina in the mid-1980s, and ongoing efforts to return human remains to families of the dead in the former-Yugoslavia following the wars of the 1990s. Our moral obligations to the dead in these contexts beg a profound and comprehensive ethical approach. With this in mind, this chapter addresses two key questions: do these dead have human rights? And if so, which speci c rights do they have? This chapter puts forward some provisional lines of enquiry and argumentation for consideration. It provides resources and evidence — historical, legal, and forensic — in support of such rights, and makes several suggestions regarding which rights might be developed with respect to the dead.
Introduction My contribution to this volume is expressly concerned with the rights, or human rights, of the deceased victims of mass atrocity. It concentrates on certain ethical issues arising out of the archaeology of mass violence, which means that it addresses the human rights that arise in the context of mass grave exhumations and humanitarian efforts to establish, by forensic means, the individual and collective identities of the victims. This kind of work became historically and politically signi cant in the later decades of the twentieth century in the context of determining the numbers, identities, and cause of death of victims of state crimes and violent con ict, returning their bodies to family members, and contributing evidence to legal trials for crimes such as crimes against humanity, genocide, torture, and enforced disappearance. Key amongst these efforts were attempts to recover and establish the identities of the deceased individuals who had been tortured and subjected to enforced disappearance in Argentina in the mid-1980s; ongoing efforts to return human remains to families of the dead in the former-Yugoslavia in the long aftermath of the wars of the 1990s; the International Criminal Tribunal for Rwanda’s (ICTR) investigation into the 1994 genocide; ongoing exhumations of Spain’s Civil War graves; the trial for genocide of Guatemala’s former President Rios Montt in 2013; and current efforts by human rights, forensics, and family organisations to establish the numbers and identities of victims of torture, murder, and enforced disappearance perpetrated by criminal gangs and state security forces in the context of Mexico’s war against organised crime. ...
I will start by reprising my two questions: do the dead have human rights? And if so, which rights do they have? These seemingly simple questions are hugely controversial and invite wildly varying responses. To date I have put them, informally, to a range of professionals and experts including international lawyers and forensic scientists. I have been faced with radically polarised responses to the rst of these questions, ranging from ‘what a ridiculous question! Only the living can have human rights’, to ‘what a ridiculous question. Of course, the dead have human rights!’. When pushed, my interlocutors have been unable to elaborate compelling justications for their (primarily, I think) instinctive responses, although some have ventured to articulate which rights the dead might have a claim to (and I return to this in the closing section of this chapter). These polarised responses demonstrate the need to address these two questions and I would argue, following Marcel Mauss ([1935] 1973, 70), that it is“generally in these ill-demarcated domains that the urgent problems lie”. There is no doubt in my mind that these are, now, urgent questions.
Arguments about the rights of the dead have, traditionally, been conducted within the fields of law and medical ethics in relation to property rights (Smolensky 2009) and organ and tissue donation (Boddington 1998; Emson 2003; Harris 2003; See the Colibrà Centre (2018) in Tucson, Arizona, for its work on migrant death on the US/ Mexico border, and the Mediterranean Missing (2018) and Last Rights (2018) projects, amongst others, who work on migrant deaths on Europe’s borders. The International Committee of the Red Cross (2017) also provides support to families of missing migrants.
Attempts to establish the human rights of the dead are scant, and have so far attracted philosophical interest but have escaped philosophical justification. As I see it, this is at least partly because the dead are interpreted within a (generally) liberal scheme of argumentation within which they are claimed to have no interests.
This scheme of understanding does not, inevitably, accommodate different cultural interpretations of what death means. For example, some animistic beliefs maintain that ‘the spirit’ survives physical death and thus, within a particular cultural script, may be seen to be in possession of certain interests. But let us for the sake of argument agree that the dead have no interests. If that is the case, how can they possibly benefit from rights? I will return to interests and bene ts at the end of this chapter, but at this point I simply want to suggest that we advance further with the argument by exploring it empirically rather than philosophically. This means, following Durkheim ([1895] 1982), that we approach and interpret human rights as ‘social facts’: as values and norms that shape (permit and constrain) human action and that can, at some level, be observed and documented. This approach requires us to eschew metaphysical or philosophical ‘groundings’. It is much more prosaic. It maintains that human rights exist in the world insofar as people behave in accordance, and can be observed to behave in accordance, with the principles that human rights set out. After all, human rights are as much a practical activity as they are one of principle, and practical activity is as constitutive of rights as is (philosophical) reasoning. Such an approach would maintain that the dead have human rights insofar as people act as though they have rights, and would require an empirical demonstration of those actions, such as evidence of behaviour that is shaped by the idea that the dead have human rights.
An immediate and obvious problem arises. The dead cannot be rights claimers, and neither can they be bearers of responsibilities. But, I would argue, they can be rights holders insofar as the living behave as if they have obligations towards the dead, treat them as if they have rights, and confer rights upon them in practice. Consequently, in order to answer the question‘do the dead have human rights?’ it becomes necessary to enquire into the behaviours of the living towards the dead. Specifically, it requires investigation of the histories, protocols, and practices out of which the human rights of the dead appear to be emerging, and any existing principles that appear to confer rights upon the dead.
There is no single human rights document to date that explicitly refers to the human rights of the dead. However, what I show in what follows is that there are rich resources in history, law, and forensic practice that already bestow, if at times subtly, human rights on the dead. These resources suggest that the human rights of the dead already exist both in principle and in practice. My intention is to divulge and make visible this so far subtle range of resources and practices that point to the human rights of the dead by referring to (a) important histories such as the births of modern humanitarianism and human rights; (b) legal guidelines regarding the treatment of the dead, and (c) the regulations governing the forensic exhumation and identification of human remains. My argument is structured in three parts. The first part demonstrates how the dead were central to the histories of contemporary humanitarianism and human rights, the second part takes a look at legal codifications, specifically in International Humanitarian Law, of the ‘right’ treatment of the dead, and the third part investigates protocols used by forensic practitioners which govern the recovery and identification of the mass dead victims of war and atrocity.
