26. September 2016 · Comments Off on Are cryonics patients….property? · Categories: Cryonics

Doodeward v. Spence, a 1908 case out of the High Court of Australia[1], addressed a very difficult question: could human remains be property? The facts of the case were somewhat bizarre. Some forty years prior to the appeal, a New Zealand woman had given birth to a stillborn, two-headed fetus. The fetus had been preserved in spirits by the attending physician, who kept it as a curiosity, until it was sold at auction after his death along with his other personal effects. The preserved fetus made its way into the hands of the appellant, Doodeward, who exhibited it for gain, resulting in his prosecution and arrest, and seizure of the preserved fetus. Doodeward sued for its return, on the grounds that his property was being wrongfully detained. The potential problem with his claim was that the established common-law rule was that “there can be no property in a corpse,” so the High Court of Australia had to consider whether this particular scenario warranted a principled exception of some kind. There was no question that exhibiting the preserved fetus was a misdemeanor – the issue to be decided was whether the mere possession of it was unlawful.

In a 2 to 1 split, the court held that “it does not follow from the mere fact that a human body at death is incapable of having an owner that it is forever incapable of having an owner,” and that in some cases, human remains could acquire property status. Chief Justice Curtis pointed to the many instances of possession of mummies, prepared skeletons, and other anatomical specimens. He went on to declare: “I entertain no doubt that, when a person has by lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.”

While it is presently beyond debate that cryonics patients are not persons under the law, Doodeward and cases like it raise the question of whether cryonics patients might fall within the category of property, with some or all of the accompanying legal attributes. What would that mean, legally and practically? Could there be any benefits or disadvantages to acknowledging it?

Legal cross-pollination between common-law countries is a reasonably frequent occurrence, especially in novel circumstances where there may not be any relevant case law from within the jurisdiction to draw from. Since the High Court of Australia’s decision in 1908, the “work and skill” exemption to the no-property rule has been referred to and applied, and even expanded, in Australia and elsewhere. Of recent note, the England and Wales Court of Appeals referred to Doodeward coming to the decision that body parts preserved at the Royal College of Surgeons could be the subject of a theft, having “acquired different attributes by virtue of the application of skill.”[2] The Court of Appeals left the door open that human body parts might be capable of being property “even without the acquisition of different attributes, if they have a significance beyond their mere existence,” citing body parts destined for transplant, extraction of DNA, or for exhibit in a trial. The Doodeward exception has also been referred to in cases acknowledging property in cryopreserved sperm, expanding the principle to encompass not only human remains, but human biological products.[3]

In distinction to England, Canada and Australia, U.S. courts have long recognized “quasi-property” rights in human remains. However, these rights are closely tied to the executor/next-of-kin’s duty to dispose of the decedent’s human remains, coupled with some enforceability of testator instructions on the subject – but they do not empower a person to simply “gift” their remains to someone absolutely, to do with as they please. And it is important to remember that even an exception like the one embodied in Doodeward only applies to human remains that have been subjected to a lawful exercise of work or skill by a person in lawful possession of them. Alcor acquires lawful possession and the right to carry out the procedures which follow via Arizona’s enactment of the Uniform Anatomical Gift Act [“UAGA”]. Like the model statute, the Arizona UAGA doesn’t explicitly state whether bodies or parts donated under the Act acquire property status. However, it does prohibit the sale or purchase of parts for transplantation or therapy.[4] There are three relevant observations to make from this: (1) the presence of this provision implies that such transactions would be legally possible otherwise, which would require that the part was property capable of being sold; (2) the provision does not apply to parts donated for research and education purposes; and (3) the provision does not apply to whole bodies, as the definition of “parts” expressly excludes this.[5] The relevant federal law similarly applies only to organs for transplantation.[6] Thus, in Arizona it appears that whole bodies or parts donated for research or education purposes may be sold and purchased – implying that the donees have acquired proprietary interests in them.

I cannot see a reason why this would not apply to cryonics patients, though substantially more comprehensive research would be required to draw any real conclusions. It would certainly go too far to say that Alcor “owns” its patients, as any proprietary interest it has in them is limited by the terms of the anatomical gift. These terms lie collectively within the Cryopreservation Agreement, Consent for Cryopreservation, and the Last Will and Testament for Human Remains and Authorization of Anatomical Donation. The extent of Alcor’s interest in its patients is expressed as “full and complete custody and control,” and elsewhere, “sole and complete control”: fairly maximizing language, which is for the good purpose of protecting against third-party interferences. While complete rights of ownership would ordinarily include the right to freely alienate (i.e. give away, or sell) the property, Alcor does reserve the right to transfer patients to other organizations in circumstances where it is facing dissolution, or other circumstances which make continued maintenance of the patient impossible. However, the Cryopreservation Agreement is not immutable – lesser restraints on Alcor’s ability to alienate its patients could be possible.

The flip side of this coin, is that if the sale and purchase of bodies or parts donated for research or education purposes is legal, then research specimens of this description have a potentially ascertainable market value. I am not implying a cryonics organization would ever start selling off its patients – that would obviously be quite monstrous. However, the possibility that cryonics patients could have research value that is collateral to their true purpose, or rather collateral to the underlying motivation behind the patients’ decision to “donate” their bodies in this way, could have other consequences. If cryonics patients are proprietary assets of their cryonics organization, then they are assets which could become hostages in lawsuits against it. The actual danger of this would in part depend on the market value assignable to the patients as research specimens, which would depend on their relevance to other research efforts – none of which I am in a good position to estimate. One would hope that the research purpose expressed in the Authorization of Anatomical Donation, being “cryobiological and cryonics research” [emphasis mine], would be construed so as to limit the possible destinations of Alcor’s patients to other cryonics organizations, thereby avoiding the hypothetical danger I have identified. However, there may be another way to protect cryonics patients from being a liability to their own survival.

One of the reasons behind establishing the Alcor Patient Care Trust [“APCT”] was to protect assets marked for patient care from litigants coming after apparent “deep pockets.” If cryonics patients are a form of property, then it is possible that they themselves could be the subject matter of trusts. As with the APCT, legal title to Alcor’s “specimens” could be transferred to an entity other than the cryonics organization itself, to be held on trust for the revived patient, using similar trust law mechanics as used in personal revival trusts (which are beyond the scope of this article), all the while remaining in the custody and care of Alcor. When the patient is revived, if this is achieved through the repair and rejuvenation of the cryopreserved specimen itself, then we face the novel consequence of trust property becoming its own beneficiary (though this would not be the first occasion of a being which was previously classified as property acquiring personhood). If, alternatively, revival is achieved with some kind of uploading technology, then, rather fittingly, the recognized successor in identity will become entitled to what is left of their former substrate. On the other hand, formally acknowledging any proprietary status of cryonics patients by making them subjects of trusts, or otherwise handling them in ways that could only be done with property, could have the side effect of confusing outsiders even more than they already tend to be. There is much to be said for approaching what we do, as much as possible, as medicine being performed on patients (even if, on paper, it is research being performed on specimens). That said, there already exists a field of medicine that treats patients that are not persons, but property: veterinary medicine. Whether a veterinarian happens to think their patients should be recognized as something more than property is not something that would be expected to decrease the quality of care they provide; and, conversely, their role as a caregiver for patients that are presently classified as property would not, to me at least, detract from any efforts they might make to lobby for increased recognition of animals as persons.

The one thing we know for sure right now is that our cryonics patients are not recognized as legal persons. As with the example of animal patients, it should be possible to operate within a system that presently recognizes our patients as property, in such a way as maximizes their benefit, while at the same time arguing they are persons and should be recognized as such.

Endnotes

[1] (1908) 6 CLR 406.

[2] (1998) 3 All ER 741.

[3] On the one hand, a survey of the legal treatment of cryopreserved embryos would seem superficially relevant to an exploration of the legal status of cryopreserved human remains, but cryopreserved embryos evidenced capacity for future personhood situates them in a different policy debate that I think distracts from an exploration of the legal status of cryonics patients today.

[4] ARS § 36-854.

[5] ARS § 36-841.

[6] 42 USC § 274e

First published as a regular column called In Perpetuity in Cryonics Magazine, April 2013

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