Douglas Oguss

Legal Issues of the 21^st Century
Prof. Friedman

3/20/04

Legal Research on Life Extension and Cryonic Suspension

Evidence

Assuming that somebody can be successfully reanimated someday after cryonic suspension, a question may arise as to whether they can testify about events that occurred in their “first life,” for example, as to who originally murdered them. Since nobody who has been cryogenically frozen has been brought back to life yet, it is unclear how his or her memory will be impacted upon reanimation. Depending on the timing of the freezing after legal death, and other variables, some individuals may suffer more extensive brain damage than others.

The Federal Rules of Evidence provide that if a prospective witness cannot remember anything from the past, he is not competent to testify. However, it will be permissible to “refresh” the witness’s memory, e.g., by showing him or her a writing, picture, or asking certain leading questions. Further, the “past recollection recorded” exception to the hearsay rule may permit the introduction of certain evidence where a witness has no present memory of facts he observed earlier, but he made a record of those facts [Fed. R. Evid. 803(5)].

Another evidentiary issue may arise as to what evidence from a person’s “first life” may be used in proceedings in his reanimated life. For example, someone who is a career criminal in his first life may be cryogenically frozen and then reanimated 100 years in the future. Should character, opinion or reputation evidence from his “first life” be introduced if he stands trial in his reanimated life?

In civil cases, character evidence is not normally admitted to prove that a person engaged in certain conduct [Fed. R. Evid. 404(a)]. For example, in a negligence case, evidence that a defendant had a reputation for careless driving would not be admissible because it is too prejudicial. In criminal cases, however, a defendant may always bring in evidence of his good character to show the improbability that he committed the crime [Fed. R. Evid. 404(a)(1)]. Federal Rule 405(a) allows evidence of opinion as well as reputation evidence in showing evidence of a defendant’s good character.

Constitutional Law

Life extension, cryonic suspension and possible reanimation raise several constitutional issues, especially relating to individual rights and equal protection. In particular, should every individual have the right to be cryogenically frozen upon death? For example, if a person is a convicted killer in his “first life,” can the government pass a law requiring absolute death (either via the death sentence, or a life sentence without cryonic suspension)?

The convicted individual may attempt to invalidate such a regulation based on substantive due process or equal protection. If the right to cryonic suspension is deemed to be a “fundamental right,” then strict scrutiny will be applied to a due process analysis, and the law will be held invalid unless it is necessary to achieve a compelling state interest. Applying this level of scrutiny, a proposed law against cryogenically freezing convicted killers may pass muster, assuming it is necessary to achieve the compelling state interests in protecting society and reducing further crime.

Another constitutional issue that may arise is whether “compulsory reanimation” is permissible. If people can eventually be cryogenically frozen and brought back to life within days, can the government compel cryogenic freezing and reanimation in certain situations? For example, if someone “dies” at the hands of a serial killer, could the government, in the compelling interest of public safety, compel freezing and reanimation of the most recent victim so that he can identify his murderer?

Since there is no legal precedent for reanimation, it may be useful to apply the “right to die” cases to help analyze this issue. With respect to these cases, the Supreme Court has held that there is no constitutional right to assistance in committing suicide, in part, because of the strong interest in the preservation of human life [Washington v. Glucksberg, 521 U.S. 702 (1997)].

Since assisted suicide is generally frowned upon (in the interest of preserving human lives), then it may seem reasonable to compel reanimation of a recent murder victim in certain cases, both in the interest of preserving the life of the recently-deceased victim, and also to fulfill the government’s interest in protecting society by identifying the killer.

However, if reanimation becomes feasible, such “compulsory reanimation” laws may conflict where religious individuals expressly request absolute death without reanimation (e.g., in the interest of seeking an afterlife). Despite their express wishes, should the government be able to compel reanimation of religious individuals where there are compelling governmental interests involved?

An analysis of Wisconsin v. Yoder, 406 U.S. 205 (1972), may shed light on this issue. In Yoder, the Supreme Court held that Amish parents could refuse to send their children to school beyond eighth grade despite a Wisconsin law requiring attendance until age 16. In effect, the Court applied a balancing test: on one hand, the parents could still provide adequate private education to the child, while on the other hand, the parents showed that further education would severely infringe on their religious beliefs. Accordingly, the balancing test tipped in favor of the Amish parents.

Applying a balancing test, like the one in Yoder, to the issue of compulsory reanimation, the balancing test would likely tip in favor of the religious decedent. First, reanimation would severely infringe on the person’s religious beliefs. Second, the government could likely obtain whatever information they needed (e.g., the identity of a killer, etc.) though alternative means, such as DNA evidence, and so forth. Accordingly, it is unlikely that reanimation could be compelled against religious wishes for absolute death.

Torts

The ability to cryogenically freeze individuals may lead to false imprisonment cases. For example, assume that an individual who does not want to be cryogenically frozen upon death does not prepare the paperwork to suspend himself. However, when an untimely death occurs, a grieving family member nevertheless contracts with a cryonic suspension corporation to keep hope alive. If the contract is executed and the individual is reanimated several years into the future, the reanimated individual might have a valid claim against either party for the intentional tort of false imprisonment.

The requirement for such cause of action is that a defendant acts (or fails to act) with an intent to confine or restrain the plaintiff to a bounded area. The general rule is that a plaintiff must know of the confinement at the time confined (here, the plaintiff won’t know of the confinement until reanimation because there will not be neurological brain activity during cryostasis). However, there is one exception to the rule that a plaintiff must know of the confinement at the time confined; namely, where the plaintiff suffers actual harm [Rest. 2d section 42]. Accordingly, it is possible that if a plaintiff suffers some brain damage or other injury associated with the freezing, he may pursue a false imprisonment suit upon reanimation.

Business Organizations

Conventional partnerships and limited liability partnerships (LLPs) generally terminate upon the death of any partner. If people can be cryogenically frozen and brought back to life, issues will arise as to whether these partnerships should be required to terminate. This will likely hinge on what legal status is accorded to the frozen partner, i.e., whether they are considered deceased, alive, or somewhere in-between.

In the context of a corporation, the general rule is that when an officer of the corporation is not able to act, another officer can bind the corporation. Therefore, the vice president has the inherent power to serve in the place of the president in the event of the president’s death, incapacity or absence. If the president “dies” and is cryogenically frozen, then the vice president will likely be able to bind the corporation while the president is frozen. If the president were to be successfully reanimated, then he may resume his duties, assuming he suffers no substantial brain damage.

Patent Law

Cryonic suspension, at the present time, is a fairly controversial technology. Historically, patent law has been adverse to controversial and unproven technologies by denying them protection under 35 U.S.C. 101. They may be denied on the basis of non-statutory subject matter, or for lacking utility. In the field of cryonic suspension, the utility requirement may pose a significant obstacle to patent protection.

Under 35 U.S.C. 101, an invention must have utility, and this is more difficult to assert where unproven technologies, such as biological applications, are involved. The Supreme Court has suggested that one needs to show some immediate and substantial benefit to society to meet the utility requirement [Brenner v. Manson, 35 U.S. 519 (1966)]. Based on Brenner, it is possible that cryonic suspension may not be deemed to have utility since there is arguably no immediate and substantial benefit to society.

Problematically, cryonic suspension companies may face utility hurdles similar to the hurdles traditional biotechnology companies faced. Specifically, many biotechnology companies could not easily test their innovative concepts on human beings, and therefore, since they were not proven to have any value, they would be rejected for lack of utility. With respect to cryonic suspension, it is unclear whether someone who is cryogenically frozen will ever be successfully brought back to life. Therefore, the patent system may frown upon this speculative field and deny patent protection based on lack of utility. It should be noted that, at the present time, very few, if any, issued patents appear directed to methods or apparatus for cryonic suspension.

Contracts

If a person is cryogenically frozen upon death, several contractual issues may arise. In cases where the contract is made contingent upon the continued existence of a person (such as a baseball player), it is unclear what should happen if the person “dies” and subsequently is cryogenically frozen.

In contract law, supervening destruction or nonexistence of the contract’s subject matter (including a person or thing) will excuse both parties from the contract. Also, death or illness in a personal services contract excuses both parties from the contract. Therefore, it will be important to determine whether a cryogenically frozen person is categorized as legally deceased or merely temporarily incapacitated.

Conventionally, if a party to a personal services contract is considered legally deceased, then the contract is voided. Interestingly, if cryogenically frozen people are categorized as legally deceased, then a contracting party may use that legal designation to his advantage. Specifically, he may attempt to use the “legally deceased” designation to become excused from a contract he has entered into, but does not want to proceed with, by killing himself with a request to become frozen and reanimated. Accordingly, he or she may get a fresh start in a second life. If the cryonics system is abused in this manner, then laws would presumably be enacted that address this loophole.

However, if cryogenically frozen persons are not designated as legally deceased, but rather temporarily incapacitated, then the contract may be analyzed under the “temporary impracticability” rule. This exception suspends the promisor’s obligation, but does not discharge it completely, while performance remains impracticable. Once the person is reanimated, then the contract may be enforced, assuming it would not pose a substantially increased hardship on either party to the contract.

Further, contract law provides that a contract may be excused where the purpose of the contract is “frustrated” by unforeseeable events [Krell v. Henry, 2 K.B. 740 (1903)]. In the future, if cryonic suspension gains popularity, the analysis of whether a contract should be excused might hinge on whether cryonic suspension and subsequent reanimation are foreseeable events.

Another contract issue that may be raised when a person undergoes cryonic suspension for an extended period of time concerns the adequacy of the consideration employed in the original contract. Generally, a court will not throw out a contract simply because both sides did not receive equal values, since courts discourage second-guessing the parties’ intent. However, a court may invalidate a contract when nominal consideration is involved.

Therefore, courts may grapple with whether the valid consideration bargained for in 2000 (during the person’s first life) is nominal in the year 2100, when the person is finally thawed and performance under the contract is required. It is unclear whether the courts would be able to “re-write” or adjust the contract to make the original consideration commensurate with financial value in the year 2100, or whether the court should excuse the contract. Such issues may be decided on a case by case basis.

Another problem with attempting to enforce contracts made in a “first life” may occur where a person is cryogenically frozen for a significant period of time (e.g., 50 to 100 years) and several of the laws governing the contracts change in the interim. Under current law, a promisor is discharged from a contract where performance of the contract becomes illegal due to changes in the law. If the law changes significantly in the intervening years, but does not make subsequent performance of the contract illegal per se, then the contract would likely be enforced, absent substantial hardships imposed on either party.

Several additional legal issues may be raised in emergency situations where an individual dies unexpectedly without having prepared a contract with a cryonic suspension corporation. In the first 48 hours, is possible that someone, such as a grieving spouse or friend, will plead to the suspension company to cryogenically freeze the decedent. Should they be authorized to contract with the suspension company?

The Cryonics Institute of Clinton Township, MI suggests that in the event of “unprepared non-member emergencies,” that “The Patient or Next of Kin or legal guardian” may sign of behalf of the recently deceased or incapacitated patient (www.cryonics.org/lastminpol1.htm). This raises numerous legal issues. First, what exactly is “Next of Kin,” and would a spouse qualify as a next of kin? While there is no precise legal definition, a wife is generally not considered next of kin to her husband, and vice versa. Various literature suggests that the term “next of kin” refers to your nearest “blood” (genetic) relative; so, rather than a spouse, your next of kin would be your parents, children or siblings. Accordingly, it appears that a spouse might be completely out of luck if their husband or wife unexpectedly dies without having filed paperwork with a suspension company beforehand.

Public policy would suggest that the Cryonics Institute policy is appropriate. If the authority was extended beyond “The Patient, Next of Kin or legal guardian,” then the door might be opened to friends, boyfriends or girlfriends, and others. It would be difficult to know where to draw the line.

Interestingly, three family members of recently deceased baseball player Ted Williams just filed a lawsuit against Alcor, alleging cryonic suspension without proper paperwork. The dispute appears to have arisen because William’s son requested that his father be frozen at the facility, while his eldest daughter and two nephews claim that Williams’ last wishes were to be cremated. The resolution of this case may set some legal precedent in the area of cryonic suspension, or at the very least, help clarify what happens when one sibling wishes for their parent to be frozen while the other sibling seeks cremation.