Cryonics Wreaking Havoc with Estate Planning by Katerina Peiros, ATI, Hartwell Legal, and Christine Smyth, ATI, Robbins Watson Solicitors
Total Page：16
File Type：pdf, Size：1020Kb
SUCCESSFUL SUCCESSION Cryonics wreaking havoc with estate planning by Katerina Peiros, ATI, Hartwell Legal, and Christine Smyth, ATI, Robbins Watson Solicitors A cryonics facility is set to open soon in NSW. This will throw the associated ethical, legal and practical dilemmas before the public and the courts. “Cryonics is the process of freezing a body at the (3) the American Cryonics Society in prescribing who can physically hold the moment of its death with the hope that it will be California; and body and how, as well as where and how 9 brought back to life at some future time.”1 (4) KrioRus in Russia. it can be disposed of. For example, a body may only be buried or cremated in Until someone creates a youth potion from These companies make no promises that designated areas. the movie Death becomes her,2 people will there is life after death, and consider that continue to expire. Most of us know the their “patients” are donating their bodies Does the frozen body have any legal rights? myth of Walt Disney being cryopreserved for scientific research.6 Is it like an embryo or foetus or an unborn baby that has some rights, but not all, and and that he might one day be revived; For those wishing to undergo their rights are not natural ones, but derive although this was later confirmed to be an cryopreservation, the patient has to either from legislation? unsubstantiated rumour, there are several go through palliative care in a hospital near hundred people and pets who have been one of these facilities or go to considerable Or is the frozen body a method that is cryopreserved until medicine is sufficiently expense to have a local hospital preserve part of the “work and skill” exception advanced to revive them. the body sufficiently before being principle derived from the seminal case of Doodeward v Spence?10 Notably, Egyptian Cryopreservation is the process of freezing transported to the facility. Cryopreservation mummies were categorised as the property the corpse or the brain within seconds is available only to long-term committed of the museums which held them. of death to –196°C with the intention of members, it is not available suddenly to an interested patient or family members and is retaining the body or brain in that state not an alternative to burial or cremation. How long should a frozen until either medicine can cure and reverse body be stored, and who has the condition which brought on death, or The town of Holbrook in New South Wales the responsibility to decide brain data can be uploaded into an artificial is set to house the first cryonics facility in to thaw or destroy the body robot-like body. Australia, where Stasis Systems Australia without reanimating it? have built such a facility. It will cost around In 2014, scientists revived minute animals Is it a financial decision of the facility once $90,000 to have your body cryopreserved.7 that had been frozen for over 30 years.3 the ingoing payment made by the patient While this raises a lot of questions, Russian billionaire Dmitry Itskov says is depleted? Is it the decision of the next including whether $90,000 is enough to of kin or an impartial ethical ombudsman? that by 2035, it will be possible to upload sustain a body over an infinite amount of Should there be a time period, eg if a human mind into computers and live time until science resolves a way to revive medical advances have not achieved forever in these android bodies.4 the body, there are mind-blowing questions revival techniques within 200 years? The website of the biggest cryonics facility for estate planners! How are the perpetuity periods for trusts says “calling someone ‘dead’ is merely Senior Lecturer Heather Conway of the affected? Should the facility have been medicine’s way of excusing itself from School of Law at Queen’s University built in South Australia, instead of NSW, resuscitation problems it cannot fix Belfast summarised some of the legal where there is no 80-year perpetuity today … Cryonics is conservative care that 8 issues and they are expanded on below. period? acknowledges that the real line between life and death is unclear and not currently What is the status of the What happens if the facility becomes known. It is humility in the face of the corpse during its time in the bankrupt or ceases to operate? Should the body be thawed out and buried or unknown”.5 deep freeze? At common law, there is no property in cremated, or transferred to another facility? Until recently, there were only four cryonic a corpse, the legal representative of the And at whose expense? preservation facilities, and they are located deceased simply has the legal duty to What happens if the body is damaged in the United States and Russia: dispose of the body and, for that purpose, while frozen? What is the loss suffered by (1) Alcor in Arizona; has the right to possession of the corpse the frozen body, loss of a chance or loss of (2) the Cryonics Institute in Michigan; subject to the legislative provisions life? Who is accountable and to whom? 96 TAXATION IN AUSTRALIA | AUGUST 2017 SUCCESSFUL SUCCESSION Who is going to police that the entire Or is the revival like being an injunction in personam preventing industry is not a hoax preying on the hopes born again and starting from the father from applying for a grant and fears of the vulnerable dying? scratch without any ongoing of administration in respect of JS’ rights from a previous estate, making or attempting to If a claim is made by a existence? make arrangements for the disposal dissatisfied beneficiary on an of JS’ body, and interfering with As far as we know, only two jurisdictions, estate, how does that affect arrangements made by the mother in France and the Canadian state of British funds that may be set aside respect of the disposal of JS’ body; Columbia, have legislated that cryonics is for preservation of the and frozen body? not legal. However, in most other countries, including Australia, this space is entirely a prospective order under s 116 of What if further funds are required for unregulated and brand new territory for the Senior Courts Act 1981 (UK) the upkeep of the frozen body? Can the succession lawyers. (or, alternatively, under the inherent legal representative or descendants be jurisdiction), to take effect upon JS’ Interestingly, there has already been case approached for the further funding? death, appointing the mother as Could a reanimated corpse reclaim assets law around this technology coming out of sole administrator of her estate and that they owned in life, but that had been the United Kingdom. specifically that the mother shall have inherited by family members on “legal” In the case of Re JS (Disposal of Body),11 the right to make arrangements for death? Could inheritance laws be undone? a 14-year-old girl, referred to as JS, was the disposal of the body and to There is an obvious clash between the diagnosed with a rare form of cancer. She decide who should be permitted to existing laws of inheritance and the idea had extensively researched cryonics in the view it. that the deceased person may come back hope that resuscitation and a cure may This case was not about cryonics, but to life and require the return of the assets. be possible in the future. She expressed about minors not having rights to make to her parents that it was her wish to be In most jurisdictions, legislation exists wills or decisions about the disposal of transported to a US cryonics preservation to protect legal representatives, family, their bodies. Because JS was a minor facility after her death so that her body beneficiaries and missing people presumed and her parents could not agree, she dead who return and wish to reclaim their could be preserved. required court authority to permit her assets. Such cases are extremely rare, JS’ mother and father had divorced and to decide what should happen to her body if she died. Had JS been an adult, tracing principles very complex and difficult the father had not seen his daughter she would have made a will and there to apply and enforce. for eight years; JS refused contact would have been some obligation on Such a case occurred in the US in the with her father and did not want him to her legal representative to follow her have detailed knowledge of her medical 1960s when Lawrence Joseph Bader, a directions (although, in most jurisdictions condition. The father’s position vacillated married cookware salesman with three in Australia, funeral directions are not during proceedings; initially, he was children and another on the way and on binding or enforceable, this very issue concerned about the costs attached to JS’ the brink of bankruptcy went missing in is currently under review in Victoria by decision, later, he had ethical dilemmas a boating accident and was presumed the Law Reform Commission). However, that: “Even if the treatment is successful drowned. His wife collected his life this case threw cryonics into the and [JS] is brought back to life in let’s say insurance and social security payments limelight — its ethical, legal and 200 years, she may not find any relative and was about to marry another man practical dilemmas. when Fritz Johnson was recognised by and she might not remember things and Together with the construction of the an acquaintance seven years later as she may be left in a desperate situation Holbrook facility, the devastating current the missing man.