Legal Periodical: Pre-Mortem Cryopreservation: Recognizing A Patient’s Right To Die In Order To Live

Ryan Sullivan, Pre-Mortem Cryopreservation: Recognizing A Patient’s Right To Die In Order To Live, 14 Quinnipiac Health L.J. 49 (2010)

(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)

“[I]n this world nothing is certain but death and taxes.” [FN1] Is it possible that Ben Franklin was only half right? Advancements in cryobiology, the study of biological systems at a very low temperature, have led many to believe that immortality may be achievable through cryopreservation. The belief is that if a body is properly preserved, the patient can effectively “wait” for the scientific and medical advancements necessary to reanimate and cure the body of the fatal injury or disease. The primary objective in the preservation process is to preserve the brain. The brain contains neurological information that makes up the identity and memories of the person being preserved. If the brain is severely damaged, reanimation is not thought possible.

In the ideal case, the cryopreservation procedure begins immediately after the person is pronounced clinically dead, ensuring the brain is cooled and preserved before any damage can occur. This perfect scenario is not possible, however, for a cryonicist (i.e., an individual pursuing cryopreservation) suffering from a terminal brain disease, such as cancer. [FN2] In this case, by the time the patient dies “naturally” from the cancer, his or her brain is already destroyed – there is nothing left to preserve. To maintain any chance of future reanimation, the patient must be preserved prior to the cancer consuming the brain – preservation must commence pre-mortem. This, of course, raises numerous thorny issues involving privacy, self-determination, morality, and assisted suicide.

Over the past 50 years, a trend towards a stronger constitutional right to privacy and self-determination has emerged – beginning with Griswold v. Connecticut [FN3] in 1965, then Roe v. Wade [FN4] in 1973. More recently, the Supreme Court has recognized a patient’s*51 right to refuse medical treatment, [FN5] and some states have found a right to assistance in committing suicide. [FN6] When such privacy rights are found, courts then balance these rights against the competing state interests in preserving life, preventing suicide, and maintaining medical integrity. For the cryonicist patient’s right to pre-mortem preservation to prevail, the court must find legitimacy in the theory of cryonics.

Today, most view cryonics as mere science fiction, dramatized in feature films such as Vanilla Sky [FN7] and Sleeper [FN8], and in the popular animated series Futurama. [FN9] Cryonics is no more immune to criticism than any other “out there” theory that challenges mainstream thought and science. Just over a century ago, human air travel was viewed as science fiction. [FN10] In fact, in 1908, Orville Wright himself wrote in a letter, “No flying machine will ever fly from New York to Paris. That seems to me to be impossible.” [FN11] Less than twenty years later Charles Lindbergh did just that, flying over 3,500 miles non-stop from New York to Paris in 1927. [FN12] Just 50 years ago, [FN13] the thought of space travel existed only in the imaginative tales of science fiction authors like Jules *52 Verne. [FN14] Human space travel was thought impossible because it was thought that the human body could not survive the burst of acceleration needed to escape Earth’s gravitational pull. We all know how that turned out.

What about resurrecting the dead? Science fiction too? For centuries, the idea of resurrecting the dead was considered an absurd fantasy – even supernatural. [FN15] But in the last 50 years, with the advent of CPR [FN16] and the use of Automated External Defibrillators (AEDs), [FN17] it has become not only a reality, but also a regularity. Presently, humans are resuscitated from clinical death on a regular basis, and go on to live full, healthy lives. Today’s science fiction is tomorrow’s science reality. Cryonics is clearly in its early stages of growth, but recent developments indicate that it might be realized in this century. Scientists are already cryogenically preserving and reviving mammal organs [FN18] and embryos [FN19]. Cryonicists wholeheartedly believe these small steps are proof that it is possible – that future science will hold the capability of reanimating whole human beings. The first aircraft flew barely a hundred feet; now jets can circle the globe. Humans have been resuscitated after as long as *53 three hours of clinical death. [FN20] If it can be done after three hours, why not after 300 years? It is just a matter of time. Having considered both the national trend towards increased constitutional privacy protection and the substantial advancements in cryobiology and other supporting sciences, this note argues that courts should recognize a terminally-ill brain cancer patient’s constitutional right to receive assistance in achieving pre-mortem cryopreservation.

Part II offers a brief overview of cryonics, including its history, the process, and the prospect of future successful animation. Part III addresses relevant federal and state laws which provide guidance as to the legality of pre-mortem cryopreservation. Finally, Part IV analyzes the various state interests at issue, and concludes that these interests are not compelling in the particular case involving the terminally ill patient seeking future life through pre-mortem cryopreservation.