'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.
