Legal Options for Alcor Members in the United States
Published by Alcor Foundation
This paper discusses a few of the ways an Alcor member can deal with the medical-legal system to increase the chances for a good crypreservation. Laws vary from state to state and county to county. We believe that the information below is generally correct, but it should not be taken as legal advice. You may wish to contact a local attorney for definitive guidance.
An autopsy is a postmortem surgical procedure in which the patient is dissected to establish the cause of death. This may be important for medical or legal purposes, but it is one of the worst things that can happen to someone who hopes to be cryopreserved. After legal death has been pronounced, a patient usually waits for hours or even days before the autopsy is performed. During this waiting period the condition of the brain will deteriorate, and the damage may be irreversible. Worse still, when the autopsy finally takes place, the brain is typically removed from the patient.
According to the American Medical Association, twenty percent of all deaths in the United States are autopsied every year. How do you know if you will be one of them? A key factor is whether you die unexpectedly. An unexpected death is liable to be classified as “unnatural.”
Unnatural deaths include homicide, suicide, and all forms of accidents. They often result in a forensic autopsy for legal reasons. For instance, if a person seems to have died as a result of drugs or poison, police have an obvious need to find out what happened. In a car accident, if one driver dies while people in another vehicle are injured, the injured parties may want to know whether the deceased driver was under the influence of alcohol or drugs, for insurance purposes. An autopsy is the way to find out.
Sometimes it may be hard to tell whether someone died naturally. If an elderly man with a past history of heart attacks is found lying in bed, lifeless, with no suicide note and no sign that anyone was with him, he probably died of natural causes — yet the police may still want an autopsy to make sure. If the same patient died from of a heart attack in a hospital after being assessed by a physician, the situation would be totally different. Almost everyone who dies in a hospital is safe from autopsy. A pathologist may still ask to investigate any uncertainty about the cause of death, but next-of-kin can refuse this request if death occurred while the patient was under medical supervision.
Even if you die outside of a hospital, you may escape being autopsied if your relatives or your cryonics organization object strenuously to the procedure, or if a coroner has no special interest in your case or is simply too busy to deal with it. Countless random factors make it impossible to predict the outcome. However, we can suggest some steps that should minimize your risk. The first of these steps is to learn more about your local coroner or medical examiner.
Coroners and Medical Examiners
The role of a coroner originated in England around 1200 AD as an official who determined the cause of death. No special training was required, and even now, 800 years later, in many locations in the United States the title does not require any formal qualifications. In an effort to modernize the system, New York City created medical examiners in 1914 and required that they must be physicians who were pathologists, trained to do autopsies. Today, many American cities have medical examiners, while many rural counties still use coroners. To discover the situation in your area, you will have to check with your county government offices.
Medical examiners may have state, district, or county jurisdiction; usually are appointed; must be licensed physicians; and are generally forensic-trained pathologists. Coroners may have district or county jurisdiction; usually are elected; and do not have to be physicians.
What really matters from a cryonicist’s point of view is that coroners and medical examiners both have a lot of power and can perform forensic autopsies regardless of objections from individuals. Also, if someone appeals against an autopsy, the patient will have to wait while the objection is heard by a judge, which can take days.
Your chances of avoiding autopsy are slightly better in California, New Jersey, Rhode Island, New York, Maryland, and Ohio, where legislation forces officials to respect an individual’s religious preferences. Here is an extract from a relevant statute:
New York Public Health Law §4210-c (1):
Notwithstanding any other provision of law, in the absence of a compelling public necessity, no dissection or autopsy shall be performed over the religious objection of a surviving relative or friend of the deceased that such procedure is contrary to the religious belief of a surviving relative or friend of the deceased that such procedure is contrary to the religious beliefs of the decedent, or, if there is otherwise reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.
You may wish to sign our Certificate of Religious Belief, which can help to reduce the risk of autopsy. Some states also discourage coroners or medical examiners from doing anything that would interfere with an anatomical donation.
While you are still alive and healthy, contact a local mortician and ask about the standard practices regarding autopsy in your county. If the mortician tells you that your local medical examiner or coroner often respects personal preferences, you can make contact with his office and explain why you are opposed to any procedure which will cause postmortem brain damage.
Alcor always makes every effort to prevent any autopsy, but if we are not present at your time of death, your relatives should know that you are opposed to being autopsied. Most of all, you should have a medical surrogate who can speak on your behalf.
Your Medical Surrogate
If you are near death, you may lapse into a coma. If you suffer a stroke, you may be unable to move or speak. In these situations, you won’t be able to tell anyone what you want, and you won’t be able to prevent decisions that may interfere with your desire to be cryopreserved after legal death.
To help assure that your wishes will be carried out, you should fill out two advance directives: A Living Will and a Durable Power of Attorney for Health Care. The exact requirements for advance directives vary from state to state. Generic state-specific documents can be obtained for free from either of the following:
A living will provides you with an opportunity to express your wishes on end-of-life issues such as withdrawal of life support. The primary statutory purpose of a Living Will, however, is to protect health care providers from liability if they carry out your wishes, particularly in such matters as withdrawal of life support. This is an important advantage in encouraging the health care providers to carry out your wishes. In some states it may not be possible to spell out your desire to be cryopreserved in a Living Will. Sometimes it might be appropriate to have your living will simply refer to your Durable Power of Attorney for Health Care for the details of your wishes. This also helps assure that the wording in both documents will be in complete agreement.
In a Durable Power of Attorney for Health Care, which is by far the more powerful of the two documents, you give someone you trust the power to make medical decisions for you in the event that you are incapacitated and unable to make such decisions yourself. This person is your medical surrogate, also known as a health care agent. The surrogate can make health care decisions with the same authority as if you made them yourself, including decisions regarding withdrawal of life support. Therefore you should be extremely careful about your choice. You should also consider naming a secondary surrogate in case your first choice is unavailable.
We offer these suggestions:
- Your surrogate should be younger than you and in good health, to maximize the chance that he or she will outlive you.
- If you wish to be cryopreserved after death, your surrogate should be fully informed about cryonics and very sympathetic toward cryonics.
- Choose someone who is smart, highly motivated, and has good social skills. You don’t want your surrogate to alienate or antagonize medical personnel.
- Although it is common to choose a spouse or close family member as your surrogate, you may choose any other person as well. If you do not choose a family member, that person should not be a beneficiary in your will who might benefit, or appear to benefit, from your death.
- Your surrogate cannot be an officer or employee of your cryonics organization (but may be a member of your cryonics organization).
Note that if you do not choose a medical surrogate, your closest next of kin will have that power by default. Even if you trust this family member to exercise medical judgment wisely, you should still give that person explicit power of attorney.
You should be aware that in some states, most notably including Arizona, the powers of a default surrogate (i.e. next of kin in the absence of a power of attorney) are more limited than the powers of a surrogate (agent) that you specifically appoint with a legal document. In Arizona, the law specifically states “a surrogate who is not the patient’s agent or guardian shall not make decisions to withdraw the artificial administration of food or fluid.”
In a Durable Power of Attorney for Health Care, you can instruct your medical surrogate about your wishes regarding end-of-life care, including your wishes regarding cryopreservation. Your surrogate is legally obligated to carry out your instructions. You can specify, for example, that no medical procedures be performed which would jeopardize your cryopreservation, that your death should not be artificially extended by any means which would tend to cause deterioration of your brain, that life support should be continued until an Alcor team can reach you, or that you should be transported to a place near Alcor. Alcor can supply suggested wording for your consideration.
It is also a good idea to instruct your surrogate to disallow autopsy. Although in many states this may not have any binding effect after your legal death, in such cases it certainly does no harm to provide a record of your wishes in this regard.
Hospitals always provide minimal Living Will and Durable Power of Attorney for Health Care forms upon admission. If you already have these documents, especially if they carefully express your desires regarding cryopreservation, you should not sign any of these hospital forms. Signing the hospital versions would automatically supercede and void your previous documents, since it is the most recently signed documents that take precedence. On the other hand, if you have no advance directives at the time, then it is probably a good idea to use the hospital forms to appoint a medical surrogate and express your wishes regarding end-of-life care.
To be certain your document is valid in your state, you may wish to consult with an attorney. To contact an attorney who specializes in this work in your area, telephone your state Bar Association (listed in your local white pages) and ask for a reference. Many attorneys who participate in the Bar Association referral service will provide an initial half-hour consultation free of charge or for a small fee.
After you have executed your advance directives, please make sure you send a copy to us at Alcor. This is absolutely essential, so that we know who has your power of attorney in an emergency. Also, it is a good idea to review your advance directives regularly to make sure that they still express your wishes accurately.
The best way of assuring that your wishes will be honored is to find a sympathetic doctor who has agreed to honor your wishes in advance. At the very least, make sure your doctor has copies of your advance directives, and that your hospital is given copies on admission.
To Resuscitate, or Not to Resuscitate
When the heart stops beating and the patient stops breathing, legal death may be pronounced. However, in practice, depending on the case, doctors, paramedics, and other health personnel may try to resuscitate the patient.
Typically, if someone is suffering from a terminal condition from which recovery is impossible, or if the patient has been enduring extreme pain or severely reduced quality of life, a hospital may place a “DNR” order, which means “Do Not Resuscitate.” Your health surrogate may be able to override this order, but this is a complicated decision. On one hand, cryonicists hope that medical staff will not prolong life unnecessarily if this will increase the risk of brain damage. Very often, a patient who is near death may have low oxygen saturation, which could injure brain cells if it continues for a long period. On the other hand, your cryonics organization will want to be nearby to take immediate action after legal death is pronounced. If Alcor has not had time to deploy a team, or if you are in a remote area, you may want medical staff to prolong your life until the team can arrive.
Recognizing this dilemma, you could consider putting a statement in your advance directives such as, “If I am in a vegetative state, I wish life support to continue, but only until the Alcor standby team is on-site and has stated that it is ready. If I experience cardiac arrest after the Alcor standby team is ready, I do not wish to be resuscitated.”
Expect the Unexpected
We have seen many cases where patients thought they had made careful plans, but circumstances conspired against them. Very often, the prospect of imminent death may be so stressful to family or close friends, they feel a deep instinctive need to do what they feel is right instead of what you asked them to do. People under stress are likely to prefer “conventional” ways of coping with death, such as a religious service followed by burial or cremation.
Also, we have seen money become an issue. Relatives who genuinely care for a patient can also become unexpectedly concerned about financial issues. We have seen relatives ask for treatment to be curtailed if the cost of the treatment will diminish the patient’s estate and the inheritance which the relatives may receive. We have also seen relatives exert emotional pressure on a patient to change financial arrangements a few weeks or even a few days before death. Even if you are certain that this can’t happen to you, we suggest you should take precautions to insure that your wishes are respected under any circumstances.
Sometimes a cryonics patient becomes his own worst enemy. We have seen an instance where a patient with a long history of interest in cryonics became suicidally depressed and took his own life, and another case where a patient refused to believe he was dying, almost until the end, and wouldn’t talk to cryonics personnel because he felt they were “unnecessary.” We are powerless to prevent such situations. All we can do is urge you to give durable power of attorney for healthcare to a person who cares deeply about your welfare and is absolutely determined that you should receive the best possible cryopreservation, if this is what you really want.
Confer with your Family
In an effort to avoid unpleasant surprises, we urge you to talk to your family about cryonics. Please don’t postpone this. If you are worried that your family may be upset by your decision to be cryopreserved, think how they may react if they don’t know about it till they encounter the cryonics team at a hospital where you are suffering a terminal illness. It is always better to raise the topic of cryonics while there is time for your family to get used to the idea.
We suggest that you simply explain what you want, without being confrontational or trying to convert people to your point of view. If you nag your relatives too much, they may pretend to go along with the idea of cryonics just to stop you from talking about it. Your objective is simply to establish your wishes, and find out how people respond.
If any of your relatives dislikes or disapproves of cryonics, please notify us so that we can include a memo in your file. If your relatives seem willing to accept your decision to be cryopreserved, please ask them to sign a Relative’s Affidavit, which we can supply to you. This document confirms that your relatives will not interfere with your cryopreservation, and is a very effective way to protect you.
You should also raise the topic of cryonics with your primary care physician. Most doctors will honor a patient’s wishes, but you should be sure about this.
Record your Preferences
If you have made a will, please be sure that it doesn’t contain any statements that conflict with your desire for cryopreservation. If you don’t have a will, please consider making one. Ideally your will should include a section explaining and affirming your outlook on cryonics and your desire for cryopreservation after legal death.
Another important step is to make a short video in which you describe your desire for cryopreservation calmly, rationally, and firmly. If there is any dispute in the future, a video is the best possible evidence that you made a fully informed decision.
Your statement should be factual and brief. Don’t digress into speculation about the power of science to repair brain damage, or the possibilities for rejuvenation if you are resuscitated in the future. Just say what you want, and make it clear that this is a deep, lasting desire, not just a transient whim.
If possible, make the video with at least two people watching you. They may serve as witnesses at a later date.
You should answer the following questions in your video. You may want someone to actually ask these questions while you are on-camera, or you can write cue cards to remind you of the questions. Either way, every answer should be a complete sentence making a complete statement. For instance, when you answer the first question listed below, don’t just recite the date. Say: “I am making this video on . . .” and then state the date. In response to the second question, don’t just say your age. Say: “I am [so many] years old.”
Here are the questions:
- What is today’s date?
- How old are you?
- Where are you making the video?
- What are the names, addresses, and social security numbers of any people watching you make the video? (Witnesses can be extremely valuable, and although social security numbers were never intended be used for identification, it can be a very powerful tool for locating people many years in the future.)
- Are you speaking of your own free will?
- Are your statements on the video your own words expressing your personal feelings?
- Are you currently in good health?
- Are you thinking clearly and rationally, without impairment from any medical condition or drugs?
- Has anyone pressured you, paid you, or tempted you to make this video?
- When did you first hear about cryonics? When did you become an Alcor member?
- Do you wish to be cryopreserved after legal death?
- Do you want your cryonics organization to take every possible step to minimize brain damage after death?
- What are your feelings about autopsy?
- Do you have a rational reason for your interest in cryonics? If so, what is it?
- Do you have any brief instructions for relatives, close friends, or others?
Alcor should receive a copy of this video for storage with your membership documents. Another copy should be given to the person who has your durable power of attorney for health care. If you can’t make a copy of the video, we suggest that you make two separate videos, as similar to each other as possible. You should also make a new video at least every five years to reaffirm your preferences and prevent anyone from suggesting that your video was obsolete because you changed your mind after you made it.
Will it Work?
All aspects of cryonics entail some risk. At Alcor, we work as hard as we can to minimize the risk of brain damage while you are in our care. It’s up to you to minimize the risks prior to your legal death. These are the steps you should take:
- Execute a Living Will and Durable Power of Attorney for Health Care to appoint a medical surrogate (see examples of state-specific forms). If you are using a standard form, modify it or write an addendum as desired to provide instructions to the surrogate regarding your cryopreservation and end-of-life care, and your preferences regarding autopsy.
- Sign our Certificate of Religious Belief, if it represents your outlook accurately.
- Confer with your relatives and your doctor.
- Make a video.
- If you believe your local coroner or medical examiner may be receptive to the idea of cryonics, contact their office as soon as possible.
Only you can take these steps. If you seriously want to maximize your chances of future resuscitation, please don’t hesitate or procrastinate.
Sources for this Document
- Unnatural Death by Michael Baden M.D., Time Warner Paperbacks. (Baden was chief medical examiner in New York City.)
- Personal communications with David Brandt-Erichsen, Secretary of the Alcor Patient Care Trust Board; and with Steve Rude, funeral director in Phoenix, Arizona.
- Office of the Medical Examiner, Rockland County, New York:
- American College of Pathologists: http://www.cap.org/
- American Medical Association (general autopsy information)