The Legal Status of Cryonics Patients
By Stephen Bridge
Former President, Alcor Foundation
Revised, December 26, 1994
Note: This is a revised version of a paper presented November 5, 1994 at the Cryonics and Life Extension Conference, Ontario, California. Caveats: I am not an attorney. This article is based on my research and on the experiences of my nearly 18 years of involvement in cryonics. I may have missed important laws or I may have misinterpreted what I have read. New laws may have been passed in your state in the past few months. You should consult your attorney or do your own research before assuming that my legal interpretations here apply to your particular situation in your state.
WHY IS THERE A LEGAL QUESTION?
There are no state or federal laws in the United States today that are specifically aimed at cryonics or which mention it by name. That doesn’t mean that no laws APPLY to cryonics. Because they work with legally dead human beings, cryonics organizations must be aware of — and often find ways to circumvent — laws intended to protect the public health from unburied or untreated corpses. Laws permitting anatomical donations have been beneficial to cryonics but pose their own set of problems. The funding of cryonic suspensions is often trapped in a tangle of laws concerning trusts, tax-exemption, and insurance policies. Eventually there WILL be laws which specifically regulate cryonic suspension and other forms of biostasis. Whether these laws are permissive or prohibitive will depend very much on our understanding of current laws and on our ability to cooperate with (or sometimes to out think) elected and appointed government officials.
LEGAL STATUS OF PATIENTS
Today, cryonics suspension patients are legally dead. Not alive, not in-between, but DEAD. How we as cryonicists think of our patients has absolutely no influence on this label. We have to remember it is *merely* a label, and labels can be changed. But until we can prove that cryonic suspension patients have a high likelihood of being revivable, we have to play the game from that viewpoint. This label of “dead” creates both problems and opportunities for us.
One obvious advantage is that life insurance and various forms of trusts can be used to fund cryonic suspensions, with the cryonics organization as beneficiary. This is standard law, and has been used successfully many times.
However, like most of the accommodations we make with the law today, the reliance on life insurance has a potential downside. Ironically, if cryonics research is successful and we can someday show that suspension patients should be labeled as “alive,” cryonic suspension companies would be in for years of chaos. How would life insurance work then? Would insurance companies pay off on the policy if no death certificate could be presented? I suspect that eventually ways would be found around this payment problem by the more honest (or at least more creative) insurance companies, just as many companies already have found ways to give pre mortem payments to terminal patients. Besides, if cryonics becomes popular (a good bet if we can show that it works), there will be a lot of new customers for some form of insurance funding.
Another advantage to the “dead” label for suspension patients is that it allows Alcor and other cryonics companies to use the Uniform Anatomical Gift Act (UAGA) to obtain legal custody of the patients’ “human remains.” Just as individuals are allowed to donate their bodies after death to medical schools or their organs for transplant, they can also donate their bodies to Alcor for “medical research.” When accomplished by a written pre-mortem declaration, this donation effectively removes the ability of family members to “dispose” of the individual in some other way.
The use of the UAGA has another benefit. Hospitals and medical personnel are used to the paperwork involved in whole body donations and to the requirement for rapid release of the body to the donee. Saying “we are taking custody of this dead person because he donated his body to us” still goes over better at the hospital than “you aren’t good enough to understand that this person is still alive, so we are going to do your job for you by freezing him until some smarter doctors come along.”
In addition, many states (including California and Arizona) have very clear legislation which requires the state and the family to respect individuals’ choices as to disposition of their own remains. At least three court cases in California have affirmed that these laws protect an individual’s right to choose cryonic suspension. In effect, this means “dead people” do have rights.
As with life insurance, future disadvantages are likely if we manage to persuade legal authorities that our patients are “alive.” I doubt that you could donate your living body to Alcor; and the laws concerning individual choice on disposition of remains would no longer apply.
Of course, labeling a suspension patient “dead” today also creates a large number of problems. Agencies which regulate funeral homes, cemeteries, and mortuaries may not appreciate our semantic balancing act between life and death and may assume we fall under their regulation. Cryonics organizations in California were fortunate enough to escape this because of an Attorney General’s opinion published in 1980. But Alcor is currently facing a similar problem in Arizona (see below).
Dead bodies are considered by most people to be empty husks, only fit for discarding. The assumptions have always been that death is the reverse of life and that life cannot be reclaimed. While it seems clear to us that this is likely to be untrue, we are forced to deal with the reality that people whose minds may be closed to this idea are the ones in charge of society. One consequence of this attitude is that “dead bodies,” whether belonging to cryonicists or not, can be autopsied with no thought of endangering a continued life.
Someday a special status and a new label for suspension patients (Don’t-Know-Yets; The Undead; Metabolically Challenged; The Deani-Mates – especially popular in Australia) will be required; but before then we will need to produce more research showing why such a status is deserved.
THE INDIVIDUAL LAWS
Alcor was in California for almost 22 years. During that time, Alcor fought and won many legal actions to establish and protect the right of individuals to choose cryonic suspension. Along the way, we and our attorneys discovered several California laws which were useful to cryonicists. When we were investigating a possible move to Arizona, we looked for similar laws there. And in the past several months, I (along with some other people) have been comparing the laws of other states that might affect our members’ suspensions.
Such legal research can be tricky. Each state may have individual quirks that would only be noticed by a local attorney or a judge, or by an official whose department was affected by that quirk. Legal indexes vary greatly in style and detail of indexing. Some statutes that on the surface appear to have *nothing* to do with cryonics might be invoked against a cryonic suspension by someone especially “creative.” Even the so-called “uniform” laws, which are supposedly the same from state to state, may be written or interpreted slightly differently, or may not have been passed in all states.
Citations are provided so the reader may find the laws in question. (Each state usually has several locations, such as law school libraries, where the laws of the fifty states are kept.) If you find information different from what I have listed here, please let us know.
I. UNIFORM ANATOMICAL GIFT ACT
California Health and Safety Code 7150-7157, original 1968, revised 1970, new Act 1988.
As explained above, this statute gives an individual the ability and the right to donate his body or organs for medical research or for transplant. While the law does not state anything about cryonic suspension, cryonic storage facilities depend on the following language to act:
“7150.5 (a) An individual who is at least 18 years of age may make an anatomical gift for any of the purposes stated in subdivision (a) of Section 7153, limit an anatomical gift to one or more of those purposes, or refuse to make an anatomical gift.”
“7153 (a) The following persons may become donees of anatomical gifts for the purposes stated: (1) a hospital, physician, surgeon, or procurement organization, for transplantation, therapy, medical or dental education, research, or advancement of medical or dental sciences.”
Alcor’s purposes are research and the advancement of medical sciences.
The cryonics organization is the “procurement organization,” which, under the definitions in the 1988 law, means “a person licensed, accredited, or approved under the laws of any state or by the State Department of Health Services for procurement, distribution, or storage of human bodies or parts.”
This led to Alcor’s great “Catch-22”-type problem in the Roe v. Mitchell case, where the California Department of Health Services told Alcor it was not an approved procurement organization. “So how do we apply for such approval?” we asked. “There is no procedure for approval,” we were told. After several years of litigation, the California Court of Appeals, 4th District, agreed that such circular unreasoning could not be used to deny Alcor the ability to store patients.
Arizona’s version of the Uniform Anatomical Gift Act is Arizona Revised Statutes, Public Health and Safety, 36-841 et seq., 1970, amended 1986, 1987.
The language that applies to a cryonics facility is somewhat different from the California version, but still gives us plenty of room.
“36-843. The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:
1. Any hospital, surgeon or physician …
2. Any accredited medical or dental school …
3. Any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy or transplantation.”
The definitions in 36-841 include this: “‘Bank or storage facility’ means a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or parts thereof.”
Arizona, like California, has no procedures to license human body storage facilities. But we didn’t have to go to court for approval in Arizona. Since the California Department of Health Services had finally signed the disposition permits in Riverside, Arizona accepted that as evidence that we were approved “under the laws of any state.”
All fifty states have passed one of two basic versions of this act, which makes it a dependable vehicle for cryonics companies to obtain legal custody of their members’ remains. The variations in the two versions of the UAGA probably don’t make much difference for custody of remains, although they may make a subtle difference in states where patients are stored. One advantage to the new form of the law is that it is simpler for people to donate their bodies at the last minute.
II. RIGHT TO CONTROL DISPOSITION OF REMAINS
California Health and Safety Code, 7100 et seq., current version 1970, amended 1988.
This act is the cornerstone of the legal rights of suspension patients in California. It details the rights of a family to control disposition of remains, and the right of a decedent to direct that disposition prior to death. Several courts have held that this act applies to cryonic suspension.
“7100(a). The right to control the disposition of the remains of a deceased person, including the location and conditions of interment, unless other directions have been given by the decedent, vests in, and the duty of interment and the liability for the reasonable cost of interment of the remains devolves upon the following in the order named:” [various relatives are listed.]
“7100(d)(1). A decedent, prior to his death, may direct the preparation for, type, or place of interment of his remains, either by oral or written instructions, but a written contract for funeral services may only be modified in writing. The person or persons otherwise entitled to control the disposition of the remains under the provisions of this section shall faithfully carry out the directions of the decedent subject only to the provisions of this chapter with respect to the duties of the coroner.”
[It is notable that the list of “Law Review Commentaries” for this section includes “Cryonic Suspension and the Law” by Curtis Henderson and Robert C.W. Ettinger, UCLA Law Review (1968) 15:414.]
Arizona has a similar statute, although not quite as powerfully worded. Arizona Revised Statutes, Public Health and Safety, 36- 831.01, added 1990, amended 1991.
“36-831.01 A. If the person on whom the duty of burial is imposed pursuant to 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”
Since the “person on whom the duty of burial is imposed” would be Alcor, via the UAGA, I can safely say that Alcor would consider cryonic suspension to be reasonable, that it would not impose an emotional hardship, and that (assuming your arrangements are in place) it would not impose a financial hardship.
We have not tested this law’s applicability to cryonics in Arizona courts; but we have pointed it out in our discussions with the Arizona Department of Health Services and the Attorney General’s Office. It seemed to make some impression.
I have not researched the statutes of many states for similar laws; but it appears that several states have included this right (I noticed both Arkansas and Oklahoma laws while looking for other things). The acts are far from uniform in wording, but the intent of free choice seems to be the same.
For instance: the “Arkansas Final Disposition Rights Act” (passed in 1991), Arkansas Revised Statutes 20-17-102.
“(b) An individual of sound mind and eighteen (18) or more years of age may execute at any time a declaration governing the final disposition of their bodily remains at their death provided such is in accordance with existing laws, rules, and practices for disposing of human remains. The declaration shall be signed by the declarant, or another at the declarant’s declaration, and shall be witnessed by two (2) individuals.
“(c) No person having possession, charge, or control of the declarant’s human remains following the death of a person who has executed a declaration of final disposition shall knowingly dispose of the body in a manner inconsistent with such declaration.”
It seems clear that Alcor’s Cryonic Suspension Agreement and Authorization of Anatomical Donation fill the requirements of this Act. As I find time to research this further, I hope to publish a list of similar statutes which exist in other states.
III. AVOIDANCE OF AUTOPSY
We want to avoid the autopsy of suspension patients at all costs. A complete autopsy requires the detailed examination and dissection of all major organs, including the brain. Normally the brain is removed from the skull, divided into sections, and placed back into the abdominal cavity with the internal organs, possibly in a destructive stew of digestive juices. In some cases the brain may be chemically investigated in greater detail, up to being liquified in a blender.
Even a limited autopsy which avoids dissection or examination of the brain can delay the onset of cryonic suspension procedures for half a day or more. In some cases of homicide or very strange diseases, bodies have been subjected to several autopsies over a period of weeks.
Most states give coroners or medical examiners wide authority to conduct autopsies and frequently require them to do so. For instance, sudden deaths of infants are usually required to be investigated, and this demand may often be extended to older children.
Fortunately for us, some state legislatures have moved toward restricting the power of the state to demand an autopsy. Some of these laws are discussed below. In addition, there may be state court decisions or Attorney General’s published opinions which will assist us in protecting your brain from autopsy; but once we find out a member has died suddenly, time is limited and action is required immediately. Yes, attorneys are expensive; but acquiring this kind of knowledge for your state in advance might allow us to keep that good old brain in a lot better condition.
One good example is an Attorney General’s opinion I found cited in a note to the Georgia statutes: “It would be unwise to undertake an examination of the head or other parts of the body without complete authority to do so, especially in those cases in which the autopsy is not necessary to discover the cause of death or it is definitely known that the cause of death arose from a condition existing in some part of the body other than the head.”
In some circumstances we could use this to convince a coroner in Georgia to perform a limited autopsy — but only if we know about it in advance. Of course, if cryonics could ever make a convincing case that suspension patients were “alive,” the autopsy question would be significantly changed. Autopsies are only performed on legally dead individuals.
RELIGIOUS OBJECTION TO AUTOPSY
One statute which has been passed in five states (California, New Jersey, New York, Ohio, and Rhode Island) is the “Religious Objection to Autopsy.” Simply, it gives people the right to prevent autopsy of their remains in most circumstances by simply signing a certificate declaring that autopsy is contrary to their “religious belief.”
It appears that the primary impetus for this law has been Orthodox Jews, whose religious beliefs forbid mutilation of the body after death. However, none of the laws require that objectors espouse any *particular* religion. Recent passage of this statute in Rhode Island and Ohio may indicate the existence of a nationally organized movement to propel such legislation. Please let me know if you locate or contact such an organization.
In those states which have passed a religious objection law, it may be the most effective way to prevent autopsies and to limit the scope of those which are performed. It has been reported that this law has prevented autopsies on two California cryonicists (not members of Alcor).
Alcor has certificates available for the five states which have passed this law. If you are a resident of one of these states or even spend a significant amount of time in one of them, we strongly urge you to sign the certificate immediately. Note that younger members are at the greatest risk of autopsy, since death at a young age is more likely to be the result of an accident, homicide, or sudden unexplained illness.
We are also working on a general form which any Alcor member can sign and which may be useful on Constitutional grounds or in a case where your state passes its own Religious Objection to Autopsy statute.
California Government Code, 27491.43. Original 1984.
This statute mandates that if the coroner is preparing to perform an autopsy or otherwise remove tissue from a decedent, and the coroner has “received a certificate of religious belief, executed by the decedent as provided in subdivision (b), that the procedure would be contrary to his or her religious belief, the coroner shall not perform that procedure on the body of the decedent.”
If the coroner is told that such a document exists, it must be produced within 48 hours. Several rules are given for the form of the certificate. Then two exceptions:
(c) “Notwithstanding the existence of a certificate, the coroner may at any time perform an autopsy or any other procedure if he or she has a reasonable suspicion that the death was caused by the criminal act of another or by a contagious disease constituting a public health hazard.” (d, paraphrased) A court may overrule the certificate if such action is in the public interest or if it is determined that the certificate was not properly executed.
If an autopsy is still required, the “least intrusive procedure consistent with the order of the court” must be used.
In a detailed search, I have found similar versions of this law in the following states:
New Jersey Statutes Annotated 52:17B-88.1 through 88.6.
New York Public Health Law 4210-c(1) et seq.
Ohio Code 313.131
Rhode Island Health and Safety Code 23-4-4.1
The language in these four states are nearly identical to each other, but somewhat different from the California law. The most important difference is that the non-California statutes do not require the objection to be in the form of a document. It may be provided verbally on behalf of the subject by a friend or family member. (It is certainly stronger with a signed form, however.)
Arizona does not have this law yet; but we hope to encourage such a movement among religious groups here. Such a law in all fifty states would prevent autopsies in many cryonic suspension cases (heart attacks, as a common example). If you would like to work for passage of such a law in your home state, and you can’t find the text cited above, we can send you a copy of it.
It also should be noted that Maryland law contains a very weak statement concerning religious objection to autopsy:
Maryland Health Code 5-310 (b)(2) “If the family of the deceased objects to an autopsy on religious grounds, the autopsy may not be performed unless authorized by the Chief Medical Examiner or by the Chief Medical Examiner’s designee.”
This Maryland law did not prevent an autopsy of an Jewish child in 1976, where the Court decided that “there were compelling State interests which outweighed the interest of the [boy’s] father in his religious tenets.” Still, it may provide protection in other cases, so we will also prepare an “objection to autopsy” document for Maryland residents.
One other intriguing idea has been put forward by Kevin Q. Brown on CryoNet (an electronic mailing list about cryonics), based on the passage by the United States Congress in 1994 of the “Religious Freedom Restoration Act” (Public Law 103-141). The Act nobly proclaims that “governments should not substantially burden religious exercise without compelling justification.”
The central portion of the law states:
“(a) In General – Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
“(b) Exception – Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Also important is the section on “applicability:”
“Sec. 6. Applicability. (a) In General – This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act.”
This is intriguing; but it does not mention autopsies. Convincing coroners to apply such a law to autopsies of cryonicists is a long way from certain, and success would likely require a very expensive and time-consuming series of appeals up to the U.S. Supreme Court. But it doesn’t hurt to mention it to coroners and other officials, so we will include a citation in the general “objection to autopsy” form we are designing.
IV. LIVING WILLS AND HEALTH CARE DIRECTIVES
Most states now allow individuals to create some form of “Durable Power of Attorney for Health Care” or otherwise to appoint someone as a “Medical Surrogate,” frequently in conjunction with a “Living Will.” Either a Durable Power of Attorney for Health Care or a Living Will can be used to state what kind of medical care you want to receive or to refuse when you are in a terminal condition and unable to act for yourself. The Medical Surrogate is the person you appoint to make and carry out those decisions on your behalf.
If you have not appointed a Medical Surrogate or if the one you have appointed is no longer willing or capable of performing such a duty, call Alcor immediately to update your forms. If you have not appointed a Medical Surrogate, your family will be left to make the decisions regarding your health care, decisions which could also affect your cryonic suspension. Typical choices include whether or not to maintain a comatose patient on a respirator and whether to administer nourishment or fluids when the patient is unconscious and clearly terminal. You know your family better than we do, but do you *really* want your family to make those decisions — especially without firm directions from you?
In some states, the Durable Power of Attorney for Health Care form expires after five years. This is true of the early California version of this form, which was signed by many Alcor suspension members. Please check your form to see if you need to prepare a new one.
“Living Wills and Health Care Directives.” Arizona Revised Statutes, Public Health and Safety, 36-3201 et seq., added 1992. Arizona’s recent addition of this law is fairly sweeping and should increase the ability of someone in Arizona to determine his own health care.
In addition to the typical decisions mentioned previously, the new law allows a person to state whether or not he consents to an autopsy. (This is very weak, though, since it does not limit the options of the coroner). And there is one other interesting paragraph that spells out a situation that has been handled informally locally in many locales: “36-3207 C. If a patient’s death follows the withholding or withdrawing of any medical care pursuant to a surrogate’s decision not expressly precluded by the patient’s health care directive, that death does not constitute a homicide or a suicide and does not impair or invalidate an insurance policy, an annuity or any other contract that is conditioned on the life or death of the patient regardless of any terms of that contract.”
I have not done any examination of the laws of other states in this regard. California and Indiana definitely have such laws, and we have forms available for those states, plus a generalized form that should work for most other states.
V. FUNERAL PRACTICE
One of the more aggravating situations in Arizona has been a recent effort by the State Board of Funeral Directors and Embalmers to claim that cryonics is part of “embalming.” Their justification for this is the definition in the Arizona Revised Statutes, Professions and Occupation, 32-1301, original 1945, amended various times since; but this term appears to be in the original.
“Definition 7. ‘Embalming’ means the disinfection, preservation, or attempted disinfection or preservation of a dead human body.'”
It’s not a very precise definition, and it could be read to include cryonics. It seems a bit silly to us and ignores that cryonics uses different technology and chemistry to produce different effects and for a vastly different purpose. One can imagine bureaucrats in the 1950’s taking laws specifying the fuel that must be used in propeller airplanes and forcing them on jets, because “the damn things fly, don’t they?”
Still, many officials invoke the mantra of “the law’s the law;” and there is likely to be some turf-protecting going on here. Our mission is to provide continuing education for the Funeral Board and to work this out cooperatively, without either endangering suspensions or engaging in an expensive discussion in court.
This “embalming” issue is an example of how laws can come out of nowhere for any cryonics company. For instance, while California has no law defining “embalming” (that I could find), it does define “embalmer” as “one who is duly qualified to disinfect or preserve dead human bodies by the injection or external application of antiseptics, disinfectants, or preservative fluids….” (California Business and Professions Code 7640, added 1939, amended 1943, 1955.)
This could be used to provide a de facto definition of embalming in California every bit as aggravating as the one in Arizona. Sometimes it is just the luck of the draw as to which official chooses to be aggravated at what time. If you are from another state besides California or Arizona, you need to find out what variations on these laws could pose problems for you.
VI. UNIFORM DETERMINATION OF DEATH ACT
It is very important for us to know the criteria for pronouncement of death in each state. Thirty-one states have passed an act which attempts to define these criteria. Alabama instead has a Uniform Brain Death Act. I have not done research on either one of these acts; but that study will have to wait for another time.
Not all problems are caused by statutes (laws). Many can be created by obscure Department regulations or Regulatory Board rules which were added to support and enforce the statutes. These may be harder to find and understand. Alcor almost had a problem with this in Arizona, since one Department of Health Services regulation required dead bodies which had not been buried after 15 days to be placed in airtight containers. We informed the Attorney General that such a requirement would invalidate most of the UAGA, since medical research cannot normally be completed in 15 days nor carried out in a sealed container. Fortunately, the Attorney General’s Office agreed. Still, there is a big lesson here. If you’re looking at doing cryonics transports or patient storage in another state, check the departmental regulations and regulatory board rules as well as the statutes.
VIII. OUT OF THE UNITED STATES
As far as I am aware, most other nations have nothing resembling the Uniform Anatomical Gift Act, although they must have some way to handle organs for transplant. It is hard to imagine the sort of regulations we will run into overseas as Alcor and cryonics spread into other countries. We invite members in other countries to write articles for us describing the legal situation where they live.
CONCLUSION — Continuing Research
Obviously we have a lot more work to do in understanding laws which might apply to cryonics, and to compare the laws of the various states.