In a previous article, Aschwin de Wolf argues that it might be easier to persuade others that cryonics patients are still alive according to existing criteria of death, than to argue for the adoption of a more progressive definition, such as information-theoretic death.  Presumably though, if we are to go to the trouble at all, it will not be solely to alleviate our subjective discomfort with the idea of being labelled dead, but rather because achieving such recognition would accrue practical benefits to present and future cryonics patients.  While it may seem obvious to state that living persons enjoy greater legal protection than dead ones, it would be inaccurate to base a comparison of the two on the assumption that, for cryonics purposes, the dead are not protected by the law whatsoever.  The question, then, is what legal protections do cryonics patients currently have, and are they enough?

First of all, what exactly does “legal protection” mean in this context? As a working definition, let’s say for the moment that we are looking for:
(a) social coercion mechanisms that promote the success and timeliness of a person’s cryopreservation, maintenance, and resuscitation, that
(b) persist after he/she has been declared dead,
(c) the ultimate authority of which flow from a jurisdiction’s laws through its courts, police, and other state agents.

(At this point, it should be pointed out that this article is not meant to be an exhaustive review, and is certainly not intended as legal advice, and so should not be relied on as such. It is solely intended as food for thought and further discussion.  The reader will also notice a distinctly Canadian perspective, and it will become apparent that generalization to other jurisdictions is not always possible. The author apologizes; it is simply the system with which he is most familiar.)

The right to a decent burial…

A corpse is not a person anymore, legally speaking, and does not have rights as such, but nonetheless there are legal obligations regarding the corpse which are imposed on still-living persons that derive from its former humanity and personhood.  Recognition of and support for prospective autonomy exist in tension with providing for the material and emotional needs of the living, as well as general social discomfort with the idea of reducing the physical remains of a former person to simple property that is owned by another.  Thus, very different kinds of rules apply to physically dealing with the corpse than apply to property owned by the person the corpse once was (property here encompassing both tangible property, and intangible “property”, like rights to another party’s performance of their obligations under a contract, etc).

The process of getting the deceased’s remains to an appropriate resting place (i.e. somewhere out of view and where it will not endanger the health of others) is partly addressed by criminal law.  Section 182(a) of Canada’s Criminal Code makes it an offence to neglect, without lawful excuse, to perform any duty imposed by law or undertaken with reference to the burial of a dead body or human remains.[1]  This is an indictable offence (roughly equivalent to a felony in the US) carrying a maximum penalty of five years imprisonment, but while prescribing this penalty for neglect of duty to bury, the Criminal Code does not itself create any such duty.  The source of the duty to bury is the common law, which calls for the executor or appointed administrator to ensure a dignified burial, or more specifically, a burial “befitting the deceased’s station in life”[2], and the term “burial” in this context has been broadly interpreted to include other forms of interment, as well as cremation.

Other aspects of the common law duty have been codified in and altered by provincial statutes.  In British Columbia, some important details can be found in the Cremation, Interment and Funeral Services Act.[3] Section 5 of the Act vests the right to control the disposition of human remains in the personal representative (read: executor) named in the deceased’s will, if any, and otherwise in the deceased’s spouse or next-of-kin.    Failing that, a government ministry may take charge, or else an unrelated person who was close to the deceased.  The person at the top of the list is not compelled to give instructions, however; if he/she is unavailable or unwilling, the right to control disposition passes to the next person in the list until someone agrees to take on the responsibility.  If multiple persons of the same degree of consanguinity cannot agree as to who among them has priority, the eldest of them takes it.[4]  A person may also apply to a court for priority irrespective of their relationship to the deceased, and on such an application the court must consider the feelings of the deceased’s relatives and associates, the beliefs and practices of others of their religion (if any), any relevant directions by the deceased, and whether the application concerns family hostility or a “capricious change of mind” regarding disposition of human remains.  The moral for cryonicists: make your intentions known early, widely, and often.

Once the person with the right to control disposition has been identified by section 5, section 6 of the CIFSA obliges him/her to exercise that right in accordance with any preference of the deceased written in their will or pre-need funeral services contract.  This is subject to a couple of important provisos, however.  First, a written preference of the deceased is not binding if compliance with the preference would be unreasonable, impracticable or cause hardship.[5]  Arizona’s analogous provision omits “impracticable”, and specifies hardship as economic or emotional.[6]  In either case, it is also probably inferable that the deceased’s instructions are only binding if they are otherwise lawful.  In Michigan, on the other hand, the deceased’s preferences are not binding on the person(s) with the right to control disposition, and neither Arizona nor Michigan gives the personal representative named in the will priority over next-of-kin in these matters, though Arizona does give priority over next-of-kin (but not over any spouse) to a person designated under a durable power of attorney.[7]  In light of this, it is rather fortunate that Robert Ettinger’s children supported his wish to be cryopreserved.[8]

Looking again at the BC law, the second exception to the duty to comply with a written preference of the deceased, is that compliance with the preference must be consistent with the Human Tissue Gift Act.[9]  Thus, a statutorily valid consent to donate one’s body or part thereof for therapeutic purposes, medical education, or scientific research will prevail over a contrary intention stated in the will or contract.[10]  The HTGA also states that upon death, such consent is “binding and full authority for the use of the body or the removal and use of the specified parts for the purpose specified”.[11]  This is a very broad authority compared to s.6 of the CIFSA, above, which only binds the person with the right to control disposition.  While the true legislative object here is almost certainly to hasten the organ transplant process by eliminating all possible sources of interference, this human remains transfer mechanism could be utilized by cryonicists in British Columbia analogously to the various state enactments of the Uniform Anatomical Gift Act in the US.  However, this does not mean that cryonicists would be advised to rely entirely on a signed body donation consent form, and not speak to the issue in their will, because if, for some reason, the donation mechanism fails (perhaps because the patient’s home jurisdiction refuses to recognize the cryonics service provider’s activities as scientific research), the disposition mechanism will operate in default to the same end.[12]  This is not a purely hypothetical concern: section 3(4) of Alberta’s equivalent to the HTGA states that only a university with a medical, dental or related health program may use a body donated under that Act for medical education or scientific research.[13]  Read in harmony with the rest of the Act, this rules out at minimum full-body donations to Cryonics Institute or Alcor.[14]  Whether the use of “body” in that section includes organs/parts, thus preventing head-only donations to Alcor as well is less clear.  Other sections of the Act refer to “any tissue, organs, or body”, so it could be argued that by negative implication the use of “body” on its own in s.3(4) refers only to donations of entire human bodies, permitting a workaround for members of Alcor who opt for neuropreservation. On the other hand, a court could decide the omission was a mere drafting error, and/or interpret the section ‘purposively’, if persuaded that the legislative intent was to restrict donation of tissues and organs in the same way as whole bodies.  If that were to be the case, Albertan cryonicists’ would be entirely restricted to the disposition mechanism for transfer of human remains.  Even more unfortunately, the preferences of the deceased with respect to disposition of their human remains are not binding on their personal representative or next-of-kin[15], so newly deanimated cryonics patients in Alberta are not at all protected in this regard.

At English-Canadian common law, historically speaking, the preferences of the deceased were not binding on executors because of a then well-accepted legal principle that there is no property in a corpse.[16] That is to say, because a person’s body was not owned by them in the legal sense, it wasn’t something that could be disposed of by a deceased in their will.  Written preferences of this kind being legally binding is something of an innovation in Canadian law[17], and might provide unexpected legal protection for cryonics patients, namely that if a deceased’s written instructions regarding disposition are binding on the person with the right to control disposition, then acting contrary to those instructions (without a lawful excuse like unreasonableness or hardship) is criminal neglect of duty per s.182(a) of the Criminal Code, as discussed above.  Thus, in of all places, British Columbia, hostile spouses, next-of-kin or poorly chosen executors could actually be criminally liable if they impede or neglect to facilitate their dearly-departed’s cryonics arrangements, although whether the police and prosecutors would decide there was a public interest in pursuing the matter is a different question entirely.  Furthermore, it doesn’t stretch the imagination to envision arguments that cryopreservation is unreasonable, or imposes some kind of hardship, and whether or not such excuses ultimately fail cannot repair the damage caused by the delay.  Nevertheless, it is clear that, with regards to the initial transfer of remains for cryopreservation, different jurisdictions offer varying types and levels of legal protections for cryonics patients.

The right to quiet repose…

Coincident to the executor’s (or other’s) duty to bury is a right of possession in the human remains, and this persists even after burial for the very practical reason that, otherwise, “those who oppose the executor would disinter the body as soon as it was buried.”[18]  That said, there are other, broader sanctions against disturbing human remains, both before and after burial.  Section 182(b) of the Criminal Code prohibits improper or indecent interference with, or offerings of indignities to a dead human body or human remains, punishable by up to five years imprisonment (like s.182(a), above).[19]  In Arizona, unauthorized disinterment or “mutilation” of human remains is a felony punishable up to 3.75 years for a first offence[20]; in Michigan, meanwhile, the maximum punishment for same is 10 years or $5000, and includes “defacing” of human remains as well.[21]  At first glance it seems strange that the Canadian provision doesn’t simply proscribe unauthorized or unlawful interferences with human remains.  Does this not imply that there are ways a person could intentionally interfere with human remains that, while not legally authorized, are nevertheless not improper or indecent?  The Criminal Code is not the whole picture, however; provincial legislation picks up where it leaves off.  The CIFSA prohibits unauthorized disinterment of human remains, with a maximum penalty of 12 months or $10,000.[22]

Though crafted to protect the corpse’s ‘right’ to non-interference (or perhaps the still-livings’ desire not to be confronted with evidence of the helplessness of mortality), section 182(b) could conceivably work contrary to cryonics patients’ interests as well, depending as it does on prevailing notions of decency, propriety, and human dignity.  The wishes of the deceased are only one part of the matrix of circumstances which will be considered in determining whether a particular interference was improper, etc.  By analogy, consent is not available as a defence to all criminal charges.  Nevertheless, the chances of a perfect storm arising of anti-cryonics police, prosecutors, judge and jury, resulting in a finding that cryopreservation is an affront to human dignity, seem remote.  The terms “mutilate” and “deface” are not themselves entirely value-mute, but the Arizona and Michigan provisions are more specifically circumscribed to leave standards of propriety in this area to the funeral industry[23]; and as before, body donations to research probably avoid these provisions entirely, though there is potential for complication when the cryonics service provider is regulated as a cemetery.

Whether the penalty at the other end of the law is a deprivation of liberty, property, or both, the best outcome from the perspective of the cryonics patient is no interference in the first place, so the best legal protection in that sense is the threat of such deprivations.  Unfortunately, all the rules discussed so far that may promote an individual’s cryopreservation and maintenance are limited by ‘lawful authorization’ exceptions, and thus whatever ‘rights’ a cryonics patient may be said to have against interference with their care are only public relations/political considerations if there is another pressing public need to be addressed.  Ascertaining a person’s cause of death when such is unclear tends to trump all else; in BC, even the Human Tissue Gift Act is expressly subject to the Coroner’s Act.[24]  The historical mandate of the coroner was to “speak for the dead”, and one must wonder if such a function is truly necessary when the “dead” has done a reasonably good job speaking for him/herself by making cryonics arrangements, the objective of which is clearly endangered by autopsy.  Cryonicists in the five US states which have enacted religious objection to autopsy legislation (California, New Jersey, New York, Ohio and Rhode Island) may find some relief by that route, but common to these is the ability for the coroner/medical examiner to override the objection where an autopsy is deemed necessary as part of a criminal investigation, or to meet an “immediate and substantial threat to the public health”.[25]  Those laudable public interests seem less compelling if there is a chance that the objector’s death is only a serious, but ultimately curable trauma (if stabilization procedures are allowed to begin right away, that is) but as discussed at the outset, that kind of argument relies on the adoption of a new definition of death, or the recognition of cryonics patients as alive according to the current one, which would result in cryonics patients having a substantially different set of legal protections than presently under examination…

Still to come: wills and trusts.

Endnotes (hyperlinked where possible):

[1] Criminal Code, RSC 1985, c C-46 s 182(a).

[2] Tzedeck v Royal Trust Co, [1953] 1 SCR 31 at 37.

[3] Cremation, Interment and Funeral Services Act, SBC 2004, c 35 (“CIFSA”).  Section 14 of the CIFSA prohibits the sale and marketing of cryonics arrangements in the province, but readers should note that Consumer Protection BC has issued an interpretation guideline stating that section 14 does not prohibit cryonics arrangements with service providers outside the province, nor does it prohibit local funeral directors from providing preparation and transport services related to such arrangements.

[4] Michigan and Arizona take a majority-rules approach: MCL § 700.3206(4) and ARS § 36-831(D).

[5] CIFSA, s 6(c).

[6] ARS § 36-831.01(A).

[7] MCL § 700.3206, ARS § 36-831(A).

[8] There is no evidence from CI’s report of Ettinger’s cryopreservation that his son, David needed to commence legal action in lieu of majority agreement between siblings.

[9] CIFSA, s 6(b), referring to Human Tissue Gift Act, RSBC 1996, c 211 (“HTGA”).

[10] HTGA, ss 4(1), 5(1).

[11] HTGA, s 4(3).

[12] HTGA, s 8.

[13] Human Tissue and Organ Donation Act, SA 2006, c H-14.5.

[14] Ibid, s 3(1).

[15] General Regulation (Cemeteries Act), Alta Reg 249/1998.

[16] Williams v Williams (1882), 20 Ch D 659.

[17] Quebec is the only other province to grant such a right: art 42 CCQ.

[18] Waldman v Melville (City of) (1990), 65 DLR (4th) 54.

[19] Criminal Code, s 182(b).

[20] ARS § 32-1364.

[21] MCL § 750.160.

[22] CIFSA, s 19.

[23] Supra notes 20 and 21.

[24] HTGA, s 13(1), referring to Coroners Act, SBC 2007, c 15.

[25] Stephen Bridge, “The Legal Status of Cryonics Patients: An Introduction”.  Washington’s state Senate recently passed a similar bill as well.

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