Above: The cryogenic storage facility in Michigan, US. The legal status of bodies preserved here is debatable/Photo Courtesy: Cryonics Institute

Cryogenic Preservation technology can help preserve dead bodies which can be revived decades later. But it raises ethical and legal dilemmas

~By Justice Bhanwar Singh and Dr NK Bahl

The right to life is an integral part of the constitution of almost all countries. But does this right extend even after death? The first-ever judgment in this regard was given on October 6, 2016, by Justice Peter Jackson, a judge in the High Court of London, in a case where a 14-year-old girl died. Her real name has been kept confidential by the London High Court, but we will call her Jijivisha, which means a strong desire to live.

According to this judgment, the dead girl can be revived after 50 or 100 years. The teen had been suffering from cancer and died on October 17, 2016. Before her death, she had filed an appeal in the High Court of London that as her death was certified, she would like to lead her life once again. Her belief was that it was likely that after 50 or 100 years, medical science would discover a treatment for her rare cancer and fresh life could be infused into her body and she could see this world once again. She also prayed for preservation of her body through cryogenic technique.

Justice Jackson visited her in the hospital and then gave the historical judgment of preserving her body. The teen’s body is preserved in minus 196 degree centigrade using liquid nitrogen. Medically, the preservation of a body has to be done within a few seconds of death. Cryonic UK, a non-profit organisation, prepared her body for transport to the cryogenic storage facility in the US.

It was in 1960 that Professor Robert Ettinger wrote that life can come back after death. He founded the Cryonics Institute at Michigan, where his own body and that of his mother and two wives are preserved. But what is the legal status of such cryogenic bodies? Can life be revived in them?

In India, there is no law to regulate such rights and situations. The Human Tissue Act, 2004, which covers England, Wales and Northern Ireland and was an act of the UK parliament, governs preservation of human tissues. However, for preservation specifically of bodies, a legislation is to be enacted. Also, it has to be considered whether the Act of 2004 would be an appropriate vehicle for dealing with cryogenic preservation.

In dealing with this issue, there can be two basic scenarios:

(i)  Prohibition on the use or prospective use of cryogenic preservation. Legislation can be drawn to define the scope of any such prohibition, domestically and internationally.

(ii) A formal acceptance of cryogenic preservation in the country with concomitant regulation of the process and actors involved.

Cryopreservation can give people false hopes. Hence, cryonic freezing companies should be banned from marketing the technique to vulnerable people. Ethically, it is complicated. While the UK teen may have got comfort, others could be duped as life may or may not be revived. Thus, anti-cryonic laws will be needed. British Columbia, believed to be the only place with anti-cryonic laws in North America, has banned funeral homes from marketing cryonics.

In the UK, Cryonic UK, a non-profit organisation, provides assistance to those in that country who wish their body to be cryo-preserved upon death. As recently as the 1950s, if the heart stopped breathing, the person was buried. But with medical advances, a dead person can be resuscitated. Science is constantly pushing the boundaries and cryonics, by the same token, pushes the boundaries a little further.

In cryogenics, a patient’s body is suspended in liquid nitrogen and prevented from further deterioration. For obvious reasons, the initial cool down has to be commenced as soon as the patient is pronounced dead. Cryogenic suspension, therefore, is akin to an ambulance to the future. It is assumed that the treatment needed to revive the person will be available in future.

Currently, cryonics is unregulated and not subject to any laws in the UK and in India. Neither does it fall under the umbrella of Human Tissue Authority, which regulates the removal, storage and use of human tissues.

Another issue is that if death is reversible, then the body can no longer be disposed of. Would this not throw all inheritance laws into disarray? Does that mean the execution of a will should also be postponed till the person is revived and dies again? Legally speaking, laws of succession and inheritance cannot be kept in abeyance and transferability of immovable property cannot be withheld or stopped. And if both the husband and wife are revived decades after cryogenic preservation, will their marriage ties also revive?

After the British teen’s death, her divorced parents became embroiled in a dispute relating to whether her remains should be taken to a specialist facility in the US and cryogenically preserved. She had lived in London with her mother and had petitioned the High Court that this parent should be the only person allowed to make decisions about the disposal of her body.

Hers has been the only application of its kind before a court in England and Wales. The judge said that the teenager had carried out internet research into cryonics during the last months of her life and there was no doubt that she had the mental capacity to launch legal action.

In the UK, Presumption of Death Act, 2013, came into force on October 1, 2014. This enables an application to be made to the High Court for a declaration that a missing person who has not been seen for at least seven years is presumed dead. The missing person’s property will then pass on to his legal representatives. His or her marriage will end. If an individual, who is declared presumed dead, reappears at a later date, the declaration may be revoked by an application in the High Court.

In India, according to Section 107 of the Indian Evidence Act, 1872, when the question arises whether a man is alive or dead and he was alive for 30 years, the burden of proving that he is dead is on the person who affirms it. However, Section 108 provides that when the question is whether a man is alive or dead and it is proved that he has not been heard for seven years, the burden of proof that he is alive is shifted to the person who affirms it. Section 107 is based on the principle of continuity of life, whereas Section 108 is regarded as a proviso to Section 107 and deals with the presumption of death. Cryogenic preservation is also indirectly a continuation of life after a gap of hibernation.

Justice Jackson also observed that if the teen’s treatment is successful and she is brought back to life, say in 200 years, she may not find any relative and she might not remember things. She may be left in a desperate situation, given that she is still only 14 years old and will be in the US, not in London. The question that needs to be asked then is whether such a deeply frozen body will be fit for new life?

The case of this teenager is an eye-opener for human rights activists. How will they deal with the ambulance of  the future?

—Justice Bhanwar Singh is a former judge of Allahabad High Court and is presently D-G, Delhi Metropolitan Education, Law College, Noida; Dr Bahl is a former district judge, UP, and presently Professor of Law, Delhi Metropolitan Education, Law College, Noida