X-Message-Number: 33392
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Date: Mon, 28 Feb 2011 03:06:39 EST
Subject: Melody Maxim's Distorted Reality 25
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In practice this means the state will act to regulate cryonics only
insofar as it impacts public health and outrages pubic decency. Thus, as long
as
cryonics operations keep their patients frozen, do not serve as a nexus for
disease propagation into the community (i.e., observe universal
precautions and infection control) and do not create angry customers with
legitimate
financial or contractual complaints, the state will be unlikely to act in
the short term.
Does this mean that cryonics should be, or will be, unregulated for the
foreseeable future? The answer to that question is probably not. The reasons
for this are that cryonics is profoundly challenging to the existing social,
legal, financial and moral paradigms - and even though it is functionally
a microscopic enterprise - the issues it raises are large and have resulted
in decades of unrelenting exposure by the media. Even more to the point,
many of the critical challenges presented by cryonics have been, and to a
large extent still are, impossible for society to perceive or understand. In
fact, it may be argued that the principal reason cryonics has in the past
(and will in the future) come in to conflict with the establishment is that
advances in conventional biomedicine begin to impinge upon and highlight to
the society at large what has long been accepted in cryonics.
A couple of examples are in order here. At the core of cryonics is the
idea that death (and thus human identity) is not a binary condition not a
black or white, or yes or no state. Also critical to the cryonics paradigm is
the idea that death is a function of technological sophistication, up to a
point, and that dead today may not be dead tomorrow, or much more accurately
(and subversively), contemporary function-based medico-legal definitions
are wrong and the proper definition of death is the irreversible loss of the
information that comprises the person.
This is a powerful and destabilizing challenge to the existing order and
it raises many disturbing questions, even for those who advocate cryonics.
If we are, in reality, information beings as opposed to our immediate
physical instantiation, then at what point on the continuum of information loss
do we lose our identity? This is a difficult and disturbing question to many
cryonicists and it is also one that has gone almost altogether unconsidered
in the rest of the world.
This radically different view of life and death has important practical
implications in cryonics practice, and where these practices touch medicine;
ethics or the law there is the potential for serious conflicts (leaving
aside issues such as malpractice in the application of such procedures to
cryopatients). A good example of this is the practice of providing
cardiopulmonary support (CPS) to cryopatients immediately after the
pronouncement of
medico-legal death.
Practically and publicly cryonics began in 1964 with the publication of
the book The Prospect of Immortality by Robert Ettinger. Right from start it
was proposed that cardiopulmonary resuscitation (CPR) be applied
immediately following medico-legal death in order to preserve brain viability
and
minimize damage associated with the dying process. In 1967, when James Bedford
was cryopreserved, the procedure of applying immediate post-cardiac arrest
cardiopulmonary support was reportedly implemented and graphic photos of
this procedure were widely reproduced in the media. In short, it was hardly a
secret and virtually every newspaper, magazine and broadcast story
covering cryonics in the ensuing decades reported this practice as a standard
part
of the cryonics procedure. To the best of my knowledge, no objections were
raised by either the medical or legal establishment at that time and that
aspect of the cryopreservation process was in no way seen as controversial
or troublesome.
Above: A widely circulated and reproduced image of Robert Nelson
purportedly applying mechanical cardiopulmonary resuscitation to James H.
Bedford,
the first man to be cryopreserved for future revival, in 1967.
In 1964 the discovery of DNA was only 11 years old. Cloning, genetic
engineering, routine organ transplantation (let alone heart and lung
transplantation) were years to decades away. Detailed exposition of
cryonics-enabling
technology such as molecular level cell and tissue repair were 30 years in
the future. Nineteen-sixty-four was a time when vitalistic ideas pervaded
both culture and medical science, and death was perceived in binary terms; a
patient was either dead or alive, with no middle ground or intermediate
states. Cardiopulmonary resuscitation (CPR) had been invented by Peter Safar
in 1960, only four years before the publication of The Prospect of
Immortality and the first mass citizen training in CPR was still 8 years away:
Leonard Cobb held the first citizen CPR training sessions in Seattle, WA in
1972. Passage of the Uniform Determination of Death Act did not occur until
1978, 14 years after the publication of The Prospect of Immortality.
Successful cryopreservation of the first human embryo, a bundle of less than 60
undifferentiated cells, did not occur until 1983: 19 years after the
publication of The Prospect of Immortality and 23 years after Ettinger first
circulated his brief tract summarizing the idea of human cryopreservation as a
means of medical time travel. At a time when most of the United States had no
emergency medical system (EMS), and ambulances were hearses driven by
Funeral Directors, the concept of cryopreservation as a vehicle to rescue by
advanced medical technology was understandably incredible and the idea that
cryonics personnel or procedures might actually have any real, practical and
immediate effect on medicine was equally incredible.
However, as time wore on, advances in medicine such as organ
transplantation, extracorporeal circulation (cardiopulmonary bypass), successful
resuscitation of people in profound accidental hypothermia from periods of
prolonged cardiac arrest, and the decision to forego resuscitation in futile
medical circumstances (i.e., do not resuscitate (DNR) and no code orders) began
to change the perception of those in the medical and legal establishment
about the nature and time-course of death. In 1964 most people, including most
professionals in medicine and the law, were certain that dead was dead and
that any patient duly pronounced dead was absolutely, incontrovertibly and
irreversibly dead. Nothing that the nuts involved in cryonics could do to
a dead person was of any practical consequence beyond the basic ones of
public health and public decency.
Above: A commonplace view of the process of death held by many, if not
most, physicians and nurses prior to closing decades of the 20th Century.
This began to change in the early 1980s as a new generation of medical
professionals became empowered. CPR was now 20 years old and had been widely
practiced in hospital. Some nurses and physicians were thus aware that in a
few patients given CPR consciousness sometime returned. Further, a few of
these individuals understood that while CPR was rarely successful (either in
transiently restoring consciousness or yielding successful long-term
recovery of life and health) in most patients to whom it was applied, in or out
of hospital, the reasons for this lack success were less likely to apply to
the average no code or DNR patient. More importantly, several decades of
increasingly routine organ transplantation had served to highlight the
problem presented by the person with a viable brain who has been pronounced
legally and medically dead on the basis of cardiorespiratory criteria, having
circulation and respiration artificially restored so that organs can be
retrieved.
Did the application of effective CPR to a person already declared dead
void that declaration? What about the possible immediate harm that person
might experience if they recovered consciousness during the first phase of
cryonics procedures? The previous generation of medical practitioners were
simply incapable of understanding that such problems could exist since nothing
in their experience prepared them for it and, what is more, the nature of
their world-view and how they defined and perceived death allowed for no such
possibilities. When people died their souls quickly left their bodies. By
the start of the 1980s some nurses in critical care environments began to
voice such concerns over application of CPS to cryonics patients.
This issue of restoring life to the dead with CPS first came to the
attention of the state with the Dora Kent case in 1987. Apart from the
sensational and highly public and false accusations of drug induced homicide,
the
underlying concern, repeatedly voiced by the Deputy Coroners handling the case
was, how long an interval should there be between the time cardiac arrest
occurs and death is pronounced and the start of cardiopulmonary support in
cryonics procedures? In a heated exchange I had with Deputy Coroner Rick
Bogan he said, You started CPR on Mrs. Kent within 2 minutes of the time her
heart stopped beating. That is not a sufficiently long enough time after
death! To which I replied (with equal heat), How long is long enough? Is 4
minutes long enough? Is 10 minutes long enough? Is stinking rotten long
enough? To which Mr. Bogan replied: I don't know! I just know that 2 minutes is
not long enough: two minutes makes a woman in her condition alive again and
that makes you a murderer. This same issue came before the courts in the
Dick Jones case in 1988 where one of the objections the hospital caring for
Mr. Jones raised to cryonics procedures was:
"Alcor is requesting that after a pronouncement of death, that Alcor
personnel be permitted to inject Mr. Roe's remains with a barbiturate. The
purpose of the injection is to prevent Mr. Roe from 'coming back to life' once
he is placed on the heart-lung resuscitator machine. . . . This proposed
action raises the issue of euthanasia which is currently illegal."
As I wrote at the time in Cryonics magazine:
This last objection caused the judge considerable amusement. As he was at
pains to point out, if the hospital pronounced the patient legally dead by
current criteria and Alcor was able to revive the patient, then that would
be a major medical advance and a marvel for the world! In other words, you
can't kill a dead person. This is something the Riverside County Coroner has
yet to figure out. As an aside, it is worth noting that the statements
about preventing the patient from "coming back to life" did not originate from
Alcor, but rather from the medical staff. Early on in our negotiations
with the hospital, one of the staff physicians raised the issue of
barbiturates being used to protect the brain against ischemic injury because he
had
previously been associated with a pilot clinical program at another
institution involving the use of barbiturates to the same end. This physician
also
raised the issue of the potential return of consciousness during vigorous
post-mortem resuscitation efforts. Having raised these issues themselves, the
hospital then proceeded to use them against us!
Since cryonicists won this round in court this issue has not resurfaced.
However, in the realm of organ retrieval for transplantation the issue of
restoring the dead to life with transient CPR has become a contentious
bioethical and medico-legal issue. As success with solid organ transplantation
has advanced, the need for donor organs has become more acute. Concurrent
advances in repairing organs that have suffered moderate ischemic intervals (in
the range of 10 to 40 minutes) have made it increasingly feasible to
recover viable organs for transplant from patients who have not been pronounced
brain dead but who cannot be restored to life. Even more disturbing to the
medico-legal establishment are those who are not terminally ill, per se,
nut who nevertheless elect to not continue living. Patients who decide to
forego long term mechanical ventilation or life support using technologies
such as left ventricular assist devices (a partial artificial heart) and who
want to donate organs for transplantation present the problem of having
viable brains - and largely viable bodies - while at the same time meeting all
the criteria for the pronouncement of clinical and medico-legal death once
life support is withdrawn and heartbeat and breathing have ceased.
Again, the situation is one where medicine is simply catching up with
realities long understood and acted upon in cryonics with the potential to
cause conflict and adverse, indeed even proscriptive regulation for cryonicists.
The point being made here is simple, if not obvious: advances in
biomedicine and changes in society as a whole will increasingly make the
activities
and procedures used by cryonicists both visible and relevant - and thus
subject to regulation or proscription. Put another way, regulation is coming
whether we like it or not.
While the position of cryonics with respect to regulation is unique in
some respects, it would be a tragic mistake to focus on those aspects and to
ignore the far greater number of ways in which cryonics is much the same as
other enterprises that society regulates. What lessons can be learned from
their experiences, both good and bad?
Broadly, there are two paths to regulation: either you do it yourself or
the state does it for you (or more accurately, to you). Most professions or
enterprises requiring regulation self-regulate before the state imposes
legally mandated oversight - and often these self-regulatory bodies ask the
state to impose regulation. The bulk of the regulatory mechanics present in
State Bar Associations (which govern licensure and the conduct of lawyers),
state Medical Boards (which govern licensure and the conduct of physicians)
and other state regulatory bodies such as Mortuary Boards, Cemetery Boards,
and the like was written by the professional associations created by and
for these undertakings. Perhaps more surprisingly, these regulatory bodies
are made up primarily of the practitioners of their professions. The
Cemetery Boards are staffed largely by Cemeterians, the State Bars mostly by
lawyers, and state Medical Boards mostly by physicians.
This may seem more than a little like the fox watching the henhouse and in
fact, there is no doubt that these agencies actions in meting out
punishment to their errant colleagues is tempered by conflict of interest.
So, why is this system used? The answer is that the alternative is
unworkable. The people most knowledgeable and most able to decide issues in
medicine are (mostly) physicians and the same is true for most other
professions.
The ultimate nightmare for any profession or enterprise is to be subject
to regulation by people who know nothing about the area they are regulating.
Regulation is, by its very nature, a trade-off between cost and benefit.
If the specific regulations are examined one at a time in enterprises that
have been crippled or destroyed by over-regulation it is very hard to find
fault with them. Each regulation, in isolation, makes sense and quite often
has a basis in a bad experience. But regulations are costly; they must be
written down, tracked, enforced and violations must be punished following due
process of law. And regulations must be complied with; and that means
substantial costs to the enterprises or individuals who are regulated.
The spectacular ability of NASCAR racing drivers to survive catastrophic
crashes without a scratch is a testimony to remarkable advances in safety
technology. If those innovations were made mandatory on every automobile in
the US, there can be little doubt that many lives would be saved. Similarly,
there can be no doubt that very few people could afford to own or operate
such automobiles. Safety standards in the auto industry are thus a dynamic
interplay between available technology and acceptable cost versus benefit.
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