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