(Or, Corporations are People, Too…)
In my last article, I looked at some historical and contemporary examples of legal activism aimed at expanding legal personhood to beings not already included in that category. As much as it was a fairly superficial survey, some trends could still be ascertained, firstly (and not so surprisingly) that courts tend to preserve the status quo when faced with these hard questions, and secondly, that even when the decision is made to admit or recognize new persons, courts do not provide much in the way of guidance with regards to what qualities the beings possess that were necessary and sufficient to their recognition as persons. The groups of beings which have seen some successes suing for increased recognition as persons (slaves, women) have been ones capable of speaking for themselves—even if lawyers were hired to make the actual legal arguments. Advocates for unborn human fetuses and nonhuman animals have received answers from the courts more or less along the lines of “these beings asserted to be persons have never before been recognized as persons, therefore they are not persons,” leaving any potential for change to the political realm (probably at the constitutional level). Some intermediate recognition or protection was carved out for late-term fetuses in Roe v Wade, and this is probably the most relevant case for future cryonics personhood activism because the court there gave some explanation for this protection as being founded upon the “potentiality of life” of the unborn fetus. So, if a cryonics personhood case were to rely on that particular precedent to argue that cryonics patients should receive some higher level of protection against unwanted interferences, I suspect the kind of proof required to substantiate their “potential” to live would be the resuscitation of a non-human animal from a cryopreserved state. Even then, the intermediate category carved out for cryonics patients may only extend so far as those humans who are preserved under the same or very similar circumstances to the experiment model, which may very well not include anyone preserved today.
So, the prospects for suing for cryonics patient personhood, or partial personhood are, for the moment, poor. Political activism might have a better shot, considering that “personhood amendments” extending personhood to fetuses have at least managed to make it through state legislatures in the U.S., but it is hard to imagine an interest group as small as today’s cryonics movement managing to get that kind of traction—we simply don’t have
enough votes for politicians to worry about winning. On the other hand, we have the simple truth that cryonics patients could really benefit from personhood, even if for no other reason than to hold assets that will otherwise be transmitted to next-of-kin or beneficiaries named in the patient’s will.
But haven’t we already solved that problem? Haven’t cryonics asset preservation trusts (or personal revival trusts, or reanimation trusts, or whatever name is currently in vogue), been developed for precisely this reason? Yes, they have, and with the abolishment of the rule against perpetuities in numerous jurisdictions these are a reasonably effective workaround to cryonics patients’ current lack of personhood. In a way, cryonics patients are not unlike some of the earliest users of trusts in English law— the Crusaders venturing off to faraway lands, whose future status as alive or dead was sufficiently uncertain that they felt it necessary to hand over their assets to trusted third parties to hold for the benefit of their families (and themselves, if they made it back alive), with some assurance that the law would recognize those beneficial entitlements. But ultimately, the law only recognizes persons as possible beneficiaries (well, with a few exceptions that cryonics patients don’t really fit into), and for these trusts to work as intended our patients do still need to resume personhood at some point—upon resuscitation, if not earlier.
What if, for some patients at least, revival doesn’t proceed by “resuscitation” in the mechanical sense, or even “repair,” but through some kind of uploading scenario which results in a being rather different in form from the original? If such beings are not recognized as legal persons, or the same persons as were cryopreserved, then even if the trustees do what they are supposed to do and recognize these beings as the beneficiaries, they will not have legal capacity to hold title to the property, and this could significantly limit their ability to actually use and benefit from those assets. So are we assuming too much about the legal status of such future beings when we establish trusts that, for the moment, can only benefit “persons”? Perhaps not – arguably it might not even be ethical to revive cryonics patients into any format that was not on equal legal footing with what we call “persons” today. But on the other hand, maybe we are unnecessarily committing ourselves to fitting into particular socially constructed boxes.
I am interested in exploring whether we could bootstrap personhood for our patients using the existing legal personhood of corporations. The current “standard” setup for cryonics asset preservation trusts has the trustee(s) holding legal title to assets for some interim beneficiary that has the personhood status required of it by trust law, with the resuscitated cryonics patient written into the trust as a contingent beneficiary and intended ultimate recipient of the trust capital. The interim beneficiary could in theory be anyone, but the traditional wisdom is that the patient’s cryonics organization is the safest choice, as being far less likely to seek to terminate the trust (which is something trust law allows beneficiaries to do under some circumstances).
In my model of cryonics patient corporate personhood, however, the patient incorporates a unique, incorporated “avatar” of themselves (named after them even) while still alive, to be the interim beneficiary of their asset preservation trust while they are not a person.
Now hold on a moment, you should be asking yourself—if the patient incorporates a corporate avatar of themselves, they own that corporation by holding all of its shares, and when they die, those shares will pass to their next of kin or the residual beneficiaries of their will, who would then “own” the beneficiary of their asset preservation trust. So how would that solve anything?
Well, these cryonics patient corporate persons need to be propped up somehow, and to that end I am imagining a cryonics patient personhood organization, a nonprofit organization formed expressly for the purpose of anchoring cryonics patients’ corporate identities during their cryopreservation. After incorporating their patient corporations, the cryonicists transfer their shares, and thus ownership of their legal avatars to the personhood organization. The personhood organization would be independent of all the cryonics service providers, patient care trusts, asset preservation trustees and institutions. While the patient is neither recognized as a legal person nor able to speak for themselves, the personhood organization’s only function is to perpetuate the existence of the patient corporations. Then, if the time comes that the patient is able to speak for themselves, but lacks personhood (i.e. the scenario I imagined above where “uploaded” beings are not recognized as persons, or the same kind of persons, as “natural” human persons), then the unalterable by-laws of the personhood organization direct it to operate the patient corporation on the revived patient’s instructions. And, of course, if and when the patient’s own natural personhood is recognized, the shares of the patient corporation will be transferred back to them—though by this time, its utility will have waned.
The personhood organization can serve as the anchor point for any number of patient corporations, and it would also fall within the mandate of such an organization to advocate concurrently fo recognition of “real” personhood for the patients, both before their resuscitation/ revival, and after if necessary. The critically important feature of this model for cryonics patient personhood is that not only is the cryonicist-composed membership and directing mind of the personhood organization bound by unalterable provisions of the organization’s constating documents to perpetuate and operate the patient corporations according to the patients’ wishes, but also that they have a very strong incentive to do so because they will all be relying on the same mechanism to prop up their own personhood down the road.
There is one other thing that interests me about using corporate personhood in this way. I have written before about whether cryonics patients are “property” in a truer, legal sense than we usually think of them. If this is so, then title to the patient “specimen” could be transferred to that patient’s corporate personality, subject, of course, to all the same conditions regarding the specimen’s use that accompanied the original anatomical gift to the patient’s cryonics service provider—namely that the specimen remain in the custody and care of the cryonics service provider. For some reason I find the idea of putting the “brain” inside the person like this to be very elegant, but I am not at all sure it poses any real advantage. One possible reason to do this would be that it would keep the specimens out of the cryonics organization’s asset column if at some point down the road a monetary value could be assigned to them that could become vulnerable to the threat of litigation. This, of course, is the reason why the funds earmarked by Alcor for indefinite patient care have been transferred into the Alcor Patient Care Trust; would it not make just as much sense to take similar precautions with the patients’ most precious assets—themselves?
When I presented this idea for cryonics patient corporate personhood at the Institute for Evidence-Based Cryonics symposium in May, I was asked whether it wouldn’t be simpler to just draft patient control directly into the asset preservation trusts instead of adding further complexity by inserting a patient corporation and personhood organization into the mix. I had to admit it is possible that cryonics patient corporate personhood is a semantic improvement more than a functional one. However, I do think it is important to remember that a trust is not a person, but rather a relationship between persons (i.e. trustee and beneficiary), and for so long as the cryonics patient is not a person, the trust is pointing at some other person as its beneficiary instead, that the cryonics patient is simply trusting without any legal recourse. My solution doesn’t avoid the “trust” issue entirely, but adds an additional check/balance, and gives the patient indirect control not just of the funds, but of a “person” on the other side that can hold title to property, enter contracts, and sue (…and be sued). I think it could be argued also that cryonics patient corporate personhood makes asset preservation trusts redundant—that is to say, why would you have someone hold your money for you if “you” are holding it yourself (while someone else is propping you up)? But we mustn’t forget to divide labor where appropriate. The mandate of the cryonics patient personhood organization would not be focused on wealth management, so there is still good reason to place assets in the hands of those with the expertise to make their value rise with the times. On the flip side, something cryonics patient corporations could do that asset preservation trusts (and the institutions which typically act as trustees for such trusts) are not well-positioned to do, is hold non-monetary personal property (i.e. keepsakes which are more valuable to the cryonicist in non-liquidated form).
Cryonics patient corporate personhood is also subject to one major risk that on its own justifies keeping the trust portion of the larger structure intact. Corporate personhood, or perhaps more correctly, the rights and protections currently enjoyed by corporate persons, have become the object of heightened public suspicion in recent years. It is not impossible that these rights could be rolled back, though I think a complete abolishment of the entire concept would only occur if there was a complete political revolution. In any case, as I’ve pointed out, trusts are useful to cryonics patients for some purposes, and patient corporations may be useful for others; and having an organization specifically devoted to advocating for and upholding cryonics patient personhood, in its natural and bootstrap forms, respectively, would benefit the cryonics movement overall.
First published as a regular column called In Perpetuity in Cryonics Magazine, August 2013.