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

Posted on: 18 Nov 2016

Category: Articles

One of the most unusual items in today’s news is the tale of a 14-year-old girl who has won the right to have her body cryogenically preserved after her death. The un-named British teenager was diagnosed with a rare, and untreatable type of cancer and her doctors gave her 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 form 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.

“The scientific theory underlying cryonics is speculative and controversial, and there is considerable debate about its ethical implications,” the presiding judge Mr Justice Jackson said. “On the other hand, cryopreservation, the preservation of cells and tissues by freezing, is now a well-known process in certain branches of medicine, for example, the preservation of sperm and embryos as a part of fertility treatment.”

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. Not only had she not seen him face to face in over eight years, but she had also repeatedly rebuffed his attempts at other forms of communication. 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 point-blank 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 Judge that the mother had the sole right to decide what happens to his daughter’s body, due in part to the estrangement and lack of presence of the father, 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 grand-children being legally obliged to take custody of her, yet it would be completely unethical to turf her out into a strange, unknown, dystopian future without any guidance or a support structure in place.

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?

Another key point surrounds the legality of her death certificate; when she becomes suspended the ‘patient’ is legally considered dead therefore a death certificate would be issued. But what happens to the certificate once 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.

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 the outcome of this case has been settled, one can expect to see more instances of cryogenic preservation occurring in the very near future. At present the process costs approximately €40,000 and as of 2015, globally over 250 people are currently preserved with over 1500 signed up to be cryopreserved upon death. We envisage that this number will increase as medicine and science continue to advance and it is of the utmost importance that the relevant legal frameworks evolve at the same rate. What was once science fiction, will become science fact, so the question is what measures need to be in place to legislate for the future?