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«\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 1 13-NOV-13 8:14 FUTURLAWMA: 21st Century Solutions to 31st Century Problems JUSTIN S. WALES1 ...»

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20. Frequently Asked Questions: Membership Questions, ALCOR.ORG, http://www.alcor.org/ FAQs/faq06.html (last visited Apr. 1, 2013).

21. Frequently Asked Questions: General Questions, ALCOR. ORG, http:// www. alcor. org/ FAQs/faq01.html (last visited Apr. 1, 2013).

22. Frequently Asked Questions: Membership Questions, supra note 20.

23. Id.

24. Id. (“Alcor places $25,000 into the Trust for each neuropatient and $115,000 for each whole body patient.”).

25. See generally Adam A. Perlin, “To Die in Order to Live”: The Need for Legislation Governing Post-Mortem Cryonics Suspension, 36 SW. U. L. REV. 33 (2007).

26. Frequently Asked Questions: Membership Questions, supra note 20.

27. Frequently Asked Questions: General Questions, supra note 21.

28. Cardiopulmonary Support in Cryonics, ALCOR.ORG, http://www.alcor.org/Library/html/ CardiopulmonarySupport.html (last visited Apr. 1, 2013).

29. Id.

30. ROBERT C.W. ETTINGER, THE PROSPECT OF IMMORTALITY (1964).

31. See, e.g., Robert L. Steinback, Frozen in Time, MIAMI HERALD, Sept. 17, 2002, at 1E.

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92 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 68:87

to the point where scientists can successfully cryogenically preserve organs, blood, and embryos,32 and even revive a person after as long as three-and-a-half hours of being declared clinically dead.33 While it is uncertain whether Dr. Ettinger’s theories on immortality are scientifically valid, such a discussion is beyond both the scope of this article and the intelligence of its author. What we can say with some confidence, however, is that “[a]lthough no one can quantify the probability of cryonics working... certainly nobody can say it is zero.”34 B. “Why must you analyze everything with your relentless logic?”35 Continuing under the assumption that Dr. Ettinger’s theories will eventually be vindicated by science, fundamental beliefs concerning mortality, death, and religion will need to be reevaluated. For the purposes of this article, however, we will limit the scope of our inquiry to two fundamental questions: What does it mean to die, and how must society adapt to a fundamental change in that meaning? As we will see, such questions are not easily answered.

Beliefs about death are deeply personal. Often rooted in faith and religion, the confidence or uncertainty about what becomes of our soul or spiritual life-force at death is not of our immediate concern. Philosophers and religious leaders will certainly struggle with such questions if cryonic reanimation becomes a reality, much as they have struggled with such questions from time immemorial.

Compared to such divine inquiries, defining the moment life ceases seems simple. According to medical standards, death occurs when a body experiences “the permanent absence of respiration and circulation.”36 Under such a definition, however, technologies that leave open the likelihood of future reanimation could fundamentally alter our concept of death. Because we can never be certain that at some point in the future a scientific resurrection of our vitality will occur, permanence no longer can be considered the deciding factor in determining death.

Bioethicists have struggled with the meaning of death and have, throughout modern history, offered different biological definitions for

32. Ryan Sullivan, Pre-Mortem Cryopreservation: Recognizing a Patient’s Right to Die in Order to Live, 14 QUINNIPIAC HEALTH L.J. 49, 55–56 (2010).

33. Cardiac Resuscitation After 3.5 Hours on ‘Autopulse’ Support Pump, ARWATCH.CO.UK, http://arwatch.co.uk/2011/02/cardiac-resuscitation-after-3-5-hours-on-%E2%80%98autopulse%E 2%80%99-support-pump (last visited Apr. 1, 2013).

34. Notable Quotes, supra note 16.

35. Futurama: The Cryonic Woman (FOX television broadcast Dec. 3, 2000).

36. PRESIDENT’S COMM’N FOR THE STUDY OF ETHICAL PROBLEMS IN MED. AND BIOMEDICAL

AND BEHAVIORAL RESEARCH, DEFINING DEATH: MEDICAL, LEGAL AND ETHICAL ISSUES IN THE

DETERMINATION OF DEATH 3 (1981), available at http://bioethics.georgetown.edu/pcbe/reports/ past_commissions /defining_death.pdf.

\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 7 13-NOV-13 8:14 2013] FUTURLAWMA 93 the term.37 What remains constant in the various explanations of death, however, is the idea of permanence. In this sense, “death is not an event, nor even a process, but rather a prediction; a prediction that such and such an individual will not be seen alive again.”38 If technology could allow a legally or biologically “deceased” individual to be reanimated, that individual’s suspended state cannot truly be classified as “dead” according to any accepted definition and must, at least semantically, be distinguished.

C. “No! I want to live! There are still too many things I don’t own!”39 To better illustrate the problems with defining the present status of a cryogenically preserved individual, let us create our own hypothetical.

Let’s say a woman, we will call her Catherine, suffers from a terminal illness that will undoubtedly cause her death within six months of diagnosis. Catherine is forty years old, has two young children, was predeceased by her husband, and is the owner of a considerable estate.





Wishing to avoid the indignity of a slow death, Catherine contacts a cryogenics facility and agrees to have her body cryogenically frozen before both her legal and biological death in the hope that medical science will eventually be able to cure her illness and she will be able to resume her life in the future. In other words, according to a modern understanding of the terms, Catherine “wishes to die in order to live.”40 Under the current state of the law, Catherine faces a number of challenges. While an individual may legally have his or her body cryogenically stored,41 pre-mortem preservation still implicates pertinent state interests in preventing homicide and suicide.42 The California Court of Appeals, in a 1992 decision, rejected a declaratory petition by mathematician Thomas K. Donaldson that would have recognized his constitutional right to pre-mortem cryonic suspension.43 Donaldson, like our fictional character Catherine, was diagnosed with a terminal condition—an inoperable brain tumor—that would ultimately result in his death.44 Arguing that his “right to privacy and self-determination are paraSee generally id.

38. Thomas A. Robinson, Stop! Are You Sure You Want to Throw Grandpa’s Body Away?, 63 U. MIAMI L. REV. 37, 54 (2008).

39. Futurama: The Honking (FOX television broadcast Nov. 5, 2000).

40. Donaldson v. Lungren, 4 Cal. Rptr. 2d 59, 60 (Cal. Ct. App. 1992).

41. See Perlin, supra note 25.

42. Id. at 51.

43. Donaldson, 4 Cal. Rptr. 2d at 61, 65.

44. Id. at 60.

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mount to any state interest in maintaining life,” Donaldson asked the court to allow him to do with his body as he wished.45 Relying on thenrecent right-to-die cases that held that patients possess a constitutional right to refuse life-saving medical treatment,46 Donaldson argued that such case law creates a legal fiction that authorizes a form of suicide that is essentially indistinguishable from the type he wishes to commit.47 Recognizing that Donaldson makes a “persuasive argument that his specific interest in ending his life is more compelling than the state’s

Abstract

interest in preserving life in general,”48 and that Donaldson “may take his own life,”49 the Court rejected his right to die by another’s hands, because, by doing so, it would prevent “public officers from performing official acts that they are required by law to perform.”50 Under California law, “[t]he coroner is required to inquire into deaths involving suicide or homicide and to carry out his or her inquiry, may take custody of the remains and examine the body of a homicide or suicide victim.”51 The Court, unwilling to grant Donaldson’s petition, stated that such a matter was better suited for the state’s legislature.52 No legislation currently exists that would specifically address the needs of people like Donaldson or our fictional Catherine.53 Supposing such legislation was passed, however, the question of how to classify a cryonic patient’s present status must be answered. The next section will analyze how such a patient’s rights and duties would differ according to the legal status of pre-mortem cryogenically preserved individuals.

DEAD?!”54 1. “THE CAT, ALIVE DEAD? ALIVE IS IT OR OR In 1935, physicist Erwin Schrodinger developed his now-classic ¨ thought experiment as a critique of the Copenhagen interpretation of quantum mechanics. The experiment involved a hypothetical cat trapped in a steel chamber along with a Geiger counter containing a small radioactive substance. Within an hour, the small radioactive substance had an equal probability of decaying or of remaining constant. If the atomic substance decays, the counter tube will discharge, and through a relay, release a hammer that shatters a flask filled with hydrocyanic acid that

45. Id. at 61.

46. Id. (citing Cruzan v. Director, Mo. Dep’t. of Health, 497 U.S. 261, 278 (1986)).

47. “As is often true in times of social transition, case law creates fictions to avoid affronting previously accepted norms.” Id. at 63.

48. Id.

49. Id.

50. Id. at 64.

51. Id.

52. Id.

53. Perlin, supra note 25, at 37, 52.

54. Futurama: Law and Oracle (Comedy Central television broadcast July 7, 2011).

\\jciprod01\productn\M\MIA\68-1\MIA101.txt unknown Seq: 9 13-NOV-13 8:14 2013] FUTURLAWMA 95 will kill the cat. If the substance does not decay, the cat will remain unharmed. Schrodinger argued that, according to quantum-mechanic ¨ theorists, the cat is both alive and dead, in equal parts, until the box is opened and the true state of the cat becomes known.55 The Schro- ¨ dinger’s Cat thought experiment, though absurd by design, presents a scenario not completely unlike our hypothetical with the fictional character Catherine.

If Catherine’s cryogenically preserved body is deemed “alive” in the eyes of society and the law, the implications of her existence are undoubtedly many. For one, how do Catherine’s heirs’ (or heirs apparent, perhaps) rights change because of Catherine’s supposed “life”? The law has typically limited the rights one has to control one’s assets or property after they meet his or her worldly end. The policy against dead hand control can be plainly seen by analyzing the Rule Against Perpetuities. The Rule Against Perpetuities, as all law school graduates will recall, requires that a “contingent future interest must vest, if at all, within twenty-one years after the expiration of some life in being when the interest was created.”56 The Rule Against Perpetuities thus restricts dead hand control by requiring that some required event occur within a set amount of time after the death of all parties to the contract. Such a restriction poses a philosophical, although not necessarily a practical, obstacle for Catherine supposing she wishes to financially provide for her family after her cryonic suspension while wishing to keep open the possibility of reclaiming her residual assets upon reanimation.

As a practical matter, with proper preparation, Catherine could avoid the imposition of the Rule Against Perpetuities from spoiling her estate plan. An antiquated and difficult to understand relic of feudal law,57 the Rule Against Perpetuities has been significantly modified or repealed in about one-third of the states.58 In states that have abrogated the Rule, courts have upheld the creations of dynasty trusts that allow a trust to last for centuries, or even, in perpetuity.59 If Catherine did not have the foresight to relocate to a state that has abandoned the use of the Rule Against Perpetuities, the question of whether Catherine will be able

55. John D. Trimmer, The Present Situation in Quantum Mechanics: A Translation of Schrodinger’s “Cat Paradox” Paper, 124 PROC. OF THE AMER. PHIL. SOC’Y 323, 328 (1983).

¨

56. Igor Levenberg, Personal Revival Trusts: If You Can’t Take It With You, Can You Come Back to Get It?, 83 ST. JOHN’S L. REV. 1469, 1478 (2012) (quoting Jesse Dukeminier & James E.

Krier, The Rise of the Perpetual Trust, 50 UCLA L. REV. 1303, 1304 (2003)).

57. See Lucas v. Hamm, 364 P.2d 685, 690 (Cal. 1961) (holding that an attorney has not committed legal malpractice by inadvertently violating the Rule Against Perpetuities while drafting a will because the Rule is so difficult to apply).

58. Dukeminier & Krier, supra note 56, at 1314.

59. Note, Dynasty Trusts and the Rule Against Perpetuities, 116 HARV. L. REV. 2588, 2591 (2003).

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to create a trust which provides for her estate to pass through her lineal heirs but will return to her if she is reanimated becomes uncertain.

Under the Rule Against Perpetuities, a contingent interest must vest within twenty-one years of all lives in being.60 The difficulties of classifying Catherine’s cryogenic state as a “life in being” have already been discussed in this article and whether she is or isn’t considered a life will likely be a question left to state legislatures. If she is considered a “life in being,” the trust would be valid under the Rule Against Perpetuities.



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