What le­gal is­sues present them­selves if an in­di­vid­ual is cryo­geni­cally pre­served?

Malta Independent - - NEWS -

Ms Tay­lor is Com­mu­ni­ca­tions Co­or­di­na­tor at Fenech Far­ru­gia Fiott Le­gal

The un-named Bri­tish child was di­ag­nosed with a rare, and ter­mi­nal type of cancer and her doc­tors told her she had only months to live. This som­bre di­ag­no­sis led to her spend­ing her fi­nal months re­search­ing cryo­genic preser­va­tion and tak­ing the de­ci­sion that she wished to un­dergo the process in the hope that one day a cure will be found and she could be re­vived.

The process of cryo­genic preser­va­tion in­volves the body be­ing sta­bilised af­ter death by hav­ing the brain sup­plied with enough oxy­gen and blood to pre­serve min­i­mal func­tion un­til the body can be trans­ported to a spe­cial­ist sus­pen­sion fa­cil­ity. Once at the fa­cil­ity, the body is treated with a cry­opro­tec­tant – a sort of hu­man an­tifreeze which cools the body with­out ac­tu­ally freez­ing it, thus putting the cells into a state of sus­pended animation with­out al­low­ing ice crys­tals to freeze in vi­tal or­gans, tis­sues and cells. Whilst the process it­self is com­pletely le­gal, it is gen­er­ally con­sid­ered to be con­tro­ver­sial on a range of moral and eth­i­cal grounds, as well as be­ing com­pletely un­reg­u­lated in most ju­ris­dic­tions.

As the girl in ques­tion was just 14 years old at the time of her di­ag­no­sis and death, any will she might make could not be con­sid­ered as legally bind­ing and de­ci­sions re­gard­ing what will hap­pen to her body af­ter death must be taken and agreed on unan­i­mously by both par­ents. Is­sues arose in this case as her mother and father di­vorced in 2008 and she had been com­pletely es­tranged from the father ever since. Once she re­ceived her di­ag­no­sis and de­cided on pro­ceed­ing with cryo­genic preser­va­tion, con­tact was made with the father to seek his con­sent for the pro­ce­dure to be un­der­taken but he cited moral and eth­i­cal con­cerns and re­fused point­blank to sign the agree­ment. It was at this point that the girl and her mother took steps to en­list the help of a so­lic­i­tor to fight for her right to de­cide.

Whilst the pre­sid­ing Judge, Mr Jus­tice Jack­son agreed that the mother had the sole right to de­cide what hap­pens to his daugh­ter’s body, he stressed that he was not rul­ing in favour of the pro­posed method. He went on to com­ment that the na­ture of the case is prac­ti­cally un­heard of in any ju­ris­dic­tion and there­fore there is no prece­dent for these mat­ters, adding that there is a need for proper reg­u­la­tion and leg­is­la­tion sur­round­ing cry­onic preser­va­tion, both in the UK and on a global ba­sis.

One thing is cer­tain, that the re­sults of this land­mark case raise a whole host of other in­ter­est­ing le­gal is­sues such as; if she is re­vived in 200 years’ time, will she still be con­sid­ered as 14 years old and there­fore a mi­nor, or will she be con­sid­ered as 14 years plus the num­ber of years she was frozen for? In the case of her be­ing con­sid­ered as a mi­nor, ques­tions arise as to who would as­sume le­gal guardian­ship of her and what rights will she have as her par­ents will be long-dead and it would be im­pos­si­ble to im­pose guardian­ship on a de­scen­dant. It is dif­fi­cult to imag­ine her great, great, great, great grand­chil­dren be­ing com­fort­able with be­com­ing le­gal guardians, yet it would be com­pletely un­eth­i­cal to turf her out into a strange, un­known, dystopian fu­ture with­out any guid­ance or sup­port struc­ture in place. An­other key point sur­rounds the le­gal­ity of her death cer­tifi­cate; when she be­comes sus­pended, is she con­sid­ered dead, alive, or sus­pended? If a death cer­tifi­cate is is­sued, then what be­comes of it when she is awo­ken? Per­haps she would as­sume a new iden­tity, per­haps the death cer­tifi­cate would be de­stroyed and a new birth cer­tifi­cate would be is­sued, or per­haps an ad­den­dum could be at­tached to it stat­ing that she died but has sub­se­quently been re­vived. Ei­ther way, things start to get very con­fus­ing.

Then there is al­ways the is­sue of in­her­i­tance; does the es­tate of her par­ents get frozen as she is, or per­haps held in trust un­til the day she is re­vived? Or does it get passed on to other liv­ing rel­a­tives only to cause a le­gal night­mare if or when she is brought back to life in say, 234 years from now? Would she be able to stake a claim on her de­scen­dant’s es­tates once she is wo­ken up or would she lose all rights to it from the mo­ment she is de­clared dead? Malta is not alone in that it does not have any rules, laws or leg­is­la­tion in place to han­dle this type of sit­u­a­tion but it is per­haps some­thing that should start to be con­sid­ered. As medicine and science con­tinue to ad­vance and what was once science fic­tion, be­comes science fact, what mea­sures need to be in place to leg­is­late for the fu­ture?

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