X-Message-Number: 3418
Date: Thu, 17 Nov 94 15:43:39
From: Bridge Steve <>
Subject: CRYONICS Legal Status of Patients
To CryoNet
>From Steve Bridge, Alcor
November 17, 1994
The following is a paper I made available to participants at the recent
Life Extension Foundation Conference, as part of my appearance on a panel
to discuss the Legal Status of Cryonics Patients. Ben Best was also on
the panel and had several interesting things to say about the
international legal situation. He hopes to make his information available
in written form sometime in the next couple of months.
I plan to publish this summary in Cryonics Magazine, probably in the 1st
quarter 1995 issue, after researching a couple of more legal points. This
is still a draft, and I would like to see if others have comments or
criticisms that I can learn from. I hope many CryoNet readers will gain
new information from what I have posted here.
Actual text commentary should be sent to me at , although
discussions of the general issues are certainly welcome here on CryoNet.
Note: I will be out of town from Nov 18-26. I will check e-mail a couple
of times but I won't be able to make detailed answers to questions or
suggestions until I return to Scottsdale.
Thank you,
Steve Bridge
****************************************************************
The Legal Status of Cryonics Patients
An Introduction
By Stephen Bridge, President
Alcor Life Extension Foundation
November 3, 1994
*The General Problem*
There are no laws in the United States today that are specifically
aimed at cryonics or which mention it by name. That doesn't mean that no
laws APPLY to cryonics. Cryonics organizations, whether "full-service" or
specialized, must be aware of -- and often find ways to circumvent -- laws
intended to protect the public health from unburied or untreated corpses.
Laws permitting anatomical donations have been beneficial to cryonics but
pose their own set of problems. The funding of cryonic suspensions is
often trapped in a tangle of laws concerning trusts, tax-exemption, and
insurance policies. Eventually there WILL be laws which specifically
attempt to regulate cryonic suspension and other forms of biostasis.
Whether these laws are permissive or prohibitive will depend very much on
our understanding of current laws and on our ability to cooperate with (or
sometimes to outwit) elected and appointed government officials.
Today, cryonics suspension patients are legally dead. Not alive, not
in-between, but DEAD. How we as cryonicists think of our patients has
absolutely no influence on this label. We have to remember it is *merely*
a label, and labels can be changed. But until we can prove that cryonic
suspension patients have a high likelihood of being revivable, we have to
play the game from that viewpoint.
While this label of "dead" creates many problems for us, it also
leads to some advantages.
One very obvious advantage is that life insurance and various forms
of trust can be used to fund cryonic suspensions, with the suspending
company as beneficiary. This is very standard law, and has been used
successfully many times. Some future legal determination that suspension
patients were legally "alive" would lead to several years of chaos for
suspension companies. Would insurance companies pay the beneficiary if no
death certificate were presented? I suspect that eventually ways would be
found around this problem by the more honest (or at least more creative)
insurance companies, just as many companies have found ways to give pre-
death payments to terminal patients (especially those dying of AIDS).
Besides, if cryonics becomes popular (a good bet if we can show that it
works), there will be a lot of new customers for *some* form of insurance
funding.
Another advantage to the "dead" label for suspension patients is that
it allows Alcor and other cryonics companies to use the Uniform Anatomical
Gift Act (UAGA) to establish legal custody of the patients' "human
remains." Just as individuals are allowed to donate their bodies after
death to medical schools or their organs for transplant, they can also
donate their bodies to Alcor for "medical research." When accomplished by
a written pre-mortem declaration, this donation effectively removes the
ability of family members to "dispose" of the individual in some other
way. All 50 states use one of two basic forms of the UAGA (the
differences probably don't make much difference for custody of remains,
although they may make a subtle difference in states where patients are
*stored*). In addition, many states (including California and Arizona)
have very clear legislation which requires the state and the family to
respect individuals' choices as to disposition of their own remains. At
least three court cases in California have affirmed that these laws
protect an individual's right to choose cryonic suspension. In effect,
this means "dead people" have some rights.
The use of the UAGA has another benefit. Hospitals and medical
personnel are used to the paperwork involved in whole body donations and
to the requirement for rapid release of the body to the donee. Saying "we
are taking custody of this dead person because he donated his body to us"
still goes over better at the hospital than "you aren't good enough to
understand that this person is still alive, so we are going to do your job
for you by freezing him until someone smarter comes along."
Of course, labeling a suspension patient "dead" also creates a large
number of problems. Agencies which regulate funeral homes, cemeteries,
and mortuaries may not appreciate our semantic balancing act between life
and death and may assume we fall under their regulation. Cryonics
organizations in California were fortunate enough to escape this because
of an Attorney General's opinion published in 1980. But Alcor is
currently facing a similar problem in Arizona (see below).
Dead bodies are considered by most people to be empty husks, only fit
for discarding. The assumption has always been that death is the reverse
of life and that life cannot be reclaimed. While it seems clear to us
that this is likely to be untrue, we are forced to deal with the reality
that the close-minded are the ones in charge of society.
Someday a special status and a new label for suspension patients
(Don't-Know-Yets; The Undead; Deanimates; Metabolically Disadvantaged)
will be needed; but before then we will need to produce more research
showing why such a status is deserved.
Some notes about individual states:
*California*
Alcor was in California for almost 22 years years. During that time,
Alcor fought and won many legal actions to establish and protect the right
of individuals to choose cryonic suspension. Along we the way, we and our
attorneys discovered several California laws which were useful for
cryonicists to know. Citations are provided so the reader may find the
laws in question. (Each state usually has several locations where the
laws of the fifty states are kept.)
I. UNIFORM ANATOMICAL GIFT ACT
California Health and Safety Code 7150-7157, original 1968, revised
1970, new Act 1988.
While the act does not state anything about cryonic suspension,
cryonic storage facilities depend on the following language to act:
"7150.5 (a) An individual who is at least 18 years of age may make an
anatomical gift for any of the purposes stated in subdivision (a) of
Section 7153, limit an anatomical gift to one or more of those purposes,
or refuse to make an anatomical gift."
and:
"7153 (a) The following persons may become donees of anatomical gifts for
the purposes stated:
(1) a hospital, physician, surgeon, or procurement organization, for
transplantation, therapy, medical or dental education, research, or
advancement of medical or dental sciences."
Our purposes are research and the advancement of medical sciences.
The cryonics organization is the "Procurement organization," which,
under the definitions in the 1988 law, means "a person licensed,
accredited, or approved under the laws of any state or by the State
Department of Health Services for procurement, distribution, or storage of
human bodies or parts."
This led to Alcor's great "Catch-22"-type problem in the *Roe v.
Mitchell* case, where Alcor was told it was not an approved procurement
organization. "So how do we apply for such approval?" we asked. "There
is no procedure for approval," we were told. After several years of
litigation, the California Court of Appeals, 4th District, agreed that
such a circle of unreasoning could not be used to deny Alcor the ability
to store patients. (A note on this decision is included in the 1994
Annotated Statutes.)
II. RIGHT TO CONTROL DISPOSITION OF REMAINS
California Health and Safety Code, 7100 et seq., current version
1970, amended 1988.
This act is the cornerstone of the legal rights of suspension
patients in California. It details the rights of a family to control
disposition of remains, and the right of a decedent to direct that
disposition. Several courts have held that this act applies to cryonic
suspension.
"7100(a). The right to control the disposition of the remains of a
deceased person, including the location and conditions of interment,
unless other directions have been given by the decedent, vests in, and the
duty of interment and the liability for the reasonable cost of interment
of the remains devolves upon the following in the order named:" [various
relatives are listed.]
and
"7100(d)(1). A decedent, prior to his death, may direct the preparation
for, type, or place of interment of his remains, either by oral or written
instructions, but a written contract for funeral services may only be
modified in writing. The person or persons otherwise entitled to control
the disposition of the remains under the provisions of this section shall
faithfully carry out the directions of the decedent subject only to the
provisions of this chapter with respect to the duties of the coroner."
Arizona has a similar statute (see below).
[It is notable that the list of "Law Review Commentaries" for this section
includes "Cryonic Suspension and the Law" by Curtis Henderson and Robert
C.W. Ettinger, UCLA Law Review (1968) 15:414.]
III. RELIGIOUS OBJECTION TO AUTOPSY
California Government Code, 27491.43. Original 1984.
This is an unusual but very helpful law which I have so far found (in
differing versions) only in California, New York, and New Jersey. It
mandates that if the coroner is preparing to perform an autopsy or
otherwise remove tissue from a decedent, and the coroner has "received a
certificate of religious belief, executed by the decedent as provided in
subdivision (b), that the procedure would be contrary to his or her
religious belief, the coroner shall not perform that procedure on the body
of the decedent."
If the coroner is told that such a document exists, it must be
produced within 48 hours. Several rules are given for the form of the
certificate. Then two exceptions: (c) "Notwithstanding the existence of
a certificate, the coroner may at any time perform an autopsy or any other
procedure if he or she has a reasonable suspicion that the death was
caused by the criminal act of another or by a contagious disease
constituting a public health hazard." (d, paraphrased) A court may
overrule the certificate if such action is in the public interest or if it
is determined that the certificate was not properly executed.
Interestingly, the certifier does not have to espouse a particular
religion.
The language in the New York and New Jersey statutes are somewhat
different, but the effect is about the same. This law has great potential
for preventing many autopsies for suspension patients, and we strongly
encourage all cryonicists residing in these three states to execute the
appropriate forms immediately. Alcor has these forms available for its
members.
Arizona does not have this law yet; but we hope to encourage such a
movement among religious groups here. Such a law in all fifty states
would prevent autopsies in many suspension cases (heart attacks, for
instance).
*Arizona*
I. UNIFORM ANATOMICAL GIFT ACT
Arizona Revised Statutes, Public Health and Safety, 36-841 et seq.,
1970, amended 1986, 1987.
The language that applies to a cryonics facility is somewhat
different from the California version, but still gives us plenty of room.
"36-843. The following persons may become donees of gifts of bodies or
parts thereof for the purposes stated:
1. Any hospital, surgeon or physician ...
2. Any accredited medical or dental school ...
3. Any bank or storage facility, for medical or dental education,
research, advancement of medical or dental science, therapy or
transplantation."
The definitions in 36-841 include this: "'Bank or storage facility'
means a facility licensed, accredited, or approved under the laws of any
state for storage of human bodies or parts thereof."
Arizona, like California, has no procedures to license human body
storage facilities. But we didn't have to go to court for approval in
Arizona. Since the California Department of Health Services had finally
signed the disposition permits in Riverside, Arizona accepted that as
evidence that we were approved "under the laws of any state."
II. RIGHT TO CONTROL DISPOSITION OF REMAINS
Arizona Revised Statutes, Public Health and Safety, 36-831.01, added
1990, amended 1991.
"36-831.01 A. If the person on whom the duty of burial is imposed
pursuant to 36-831 is aware of the decedent's wishes regarding the
disposition of his remains, that person shall comply with those wishes if
they are reasonable and do not impose an economic or emotional hardship."
Since the "person on whom the duty of burial is imposed" would be
Alcor, via the UAGA, I can safely say that Alcor would consider cryonic
suspension to be reasonable, that it would not impose an emotional
hardship, and that (assuming your arrangements are in place) it would not
impose a financial hardship.
III. LIVING WILLS AND HEALTH CARE DIRECTIVES
Arizona Revised Statutes, Public Health and Safety, 36-3201 et seq.,
added 1992.
Arizona has added a law allowing Health Care Surrogates, a Health
Care Power of Attorney (as one possible way of appointing a health care
surrogate), Prehospital Care Directives, and Living Wills. The law is
fairly sweeping and should increase the ability of someone in Arizona to
determine his health care.
It allows you to state whether or not you consent to an autopsy (this
is very weak, though, since it does not limit the options of the coroner).
And there is one other interesting paragraph that spells out a situation
that has been handled informally locally in many locales:
"36-3207 C. If a patient's death follows the withholding or withdrawing
of any medical care pursuant to a surrogate's decision not expressly
precluded by the patient's health care directive, that death does not
constitute a homicide or a suicide and does not impair or invalidate an
insurance policy, an annuity or any other contract that is conditioned on
the life or death of the patient regardless of any terms of that
contract."
IV. FUNERAL PRACTICE
One of the more aggravating situations in Arizona has been a recent
effort by the State Board of Funeral Directors and Embalmers to claim that
cryonics is part of "embalming." Their justification for this is the
definition in the Arizona Revised Statutes, Professions and Occupation,
32-1301, original 1945, amended various times since, but this term appears
to be in the original.
"Definition 7. 'Embalming' means the disinfection, preservation, or
attempted disinfection or preservation of a dead human body.'"
It's not a very precise definition, and could be read to include
cryonics. It seems a bit silly to us and ignores that cryonics uses
different technology and chemistry to produce different effects and for a
vastly different purpose. One can imagine bureaucrats in the 1950's
taking laws specifying the fuel that must be used in propeller airplanes
and forcing them on jets, because "the damn things fly, don't they?"
Still, many officials hide behind "the law's the law;" and there is
likely to be some turf-protecting going on here. Our mission is to
provide continuing education for the Funeral Board and to continue to work
this out without either endangering suspensions or engaging in a much more
expensive discussion in court.
These kinds of laws can come out of nowhere for any cryonics company.
For instance, while California has no law defining "embalming" (that I
could find), it does define "embalmer" as "one who is duly qualified to
disinfect or preserve dead human bodies by the injection or external
application of antiseptics, disinfectants, or preservative fluids...."
(California Business and Professions Code 7640, added 1939, amended 1943,
1955.)
This could be used to provide a de facto definition of embalming in
California every bit as aggravating as the one in Arizona. Sometimes it
is just the luck of the draw which official chooses to be aggravated at
what time. If you are from another state besides California or Arizona,
you need to find out what variations on these laws could pose problems for
you.
V. REGULATIONS
Not all problems are caused by statutes (laws). Many can be created
by obscure Department regulations added to support laws. These may be
harder to find and understand. Alcor almost had a problem with this in
Arizona, since one Department of Health Services regulation required dead
bodies which had not been buried after 15 days to be placed in airtight
containers. We informed the Attorney General that such a requirement
would invalidate most of the UAGA, since medical research cannot normally
be completed in 15 days nor carried out in a sealed container.
Fortunately, the Attorney General's Office agreed. Still, there is a big
lesson here. If you're looking at doing cryonics transports or patient
storage in another state, check the regulations as well as the laws.
*Other States*
We don't *know* what the situation is like in most states. No one
has had the time or patience to look for similar laws and regulations.
However, attorney H. Jackson Zinn has begun work on a legal guide to
cryonics that will try to integrate the laws of the various states. Let
us know if you wish to help with this work by looking at laws in your own
state.
*Out of the United States*
As far as I am aware, most other nations do not have something
similar to the Uniform Anatomical Gift Act, although they must have some
way to handle organs for transplant. It is hard to imagine the sort of
regulations we will run into as Alcor and cryonics spreads into other
countries. We will need much assistance from the members in those
countries.
[end]
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