The Future of Death:
Cryonics and the Telos of Liberal Individualism
James J.
Hughes, Ph.D.
Trinity College
Hartford, Connecticut
For more information please contact:
James Hughes, Trinity College,
71 Vernon St., Hartford CT, 06106, 860-297-2376, jhughes@changesurfer.com, www.changesurfer.com
The Future of Death: Cryonics and the Telos of Liberal
Individualism
Abstract
This paper addresses four
questions: First, what is trajectory of Western liberal ethics and politics in
defining life, rights and citizenship?
Second, how will neuro-remediation and other technologies change the
definition of death for the brain injured and the cryonically suspended? Third,
will people always have to be dead to be cryonically suspended? Fourth, how will changing technologies and
definitions of identity affect the status of people revived from brain injury
and cryonic suspension?
I propose that Western
liberal thought is working towards a natural end, a “telos.” In response to a
variety of biotechnologies, law and public opinion in liberal democracies will
be forced to make explicit that the rights of a living thing are determined by
its level of consciousness. I discuss
the way that technology will force three clarifications about the value of
consciousness, at the beginning, the end and boundaries of human life. Sentience and personhood will become the
basis of moral concern, regardless of its media. Just as human rights have become independent of race, gender and
property, rights will become independent of being a breathing human being.
But even as we make
this transition, the cryonically preserved are still likely to be considered
dead for pragmatic reasons, albeit with gradually increasing rights as
technology makes their reanimation increasingly probable.
I suggest that it could
be acceptable to cryonicists that the frozen continue to be defined as dead if
assisted suicide can be legalized.
Under a liberal assisted suicide policy cryonicists might be allowed to
carry out suspension before a declaration of death, preserving the maximum
amount of neural information.
The gradual
redefinition of life and personal identity in terms of psychological continuity
will also have consequences for the legal status of the reanimated. If, due to information loss, the reanimated
do not meet a threshold of psychological continuity, they may be considered new
persons. Cryonicists may therefore wish
to specify ahead of time whether they are still interested in being reanimated
if pre-animation assessment suggests that the result will not meet the
necessary threshold of continuity.
Finally, I touch on the
way that neural technology will fundamentally problematize the separate,
autonomous self on which liberal democratic values are based, leading to a
legal and political Singularity. It is this looming neural Singularity that
makes the proposed liberal democratic telos a final stage in humanistic
thought, before it is superceded by something radically different.
The Future of Death: Cryonics and the Telos of Liberal
Individualism
Introduction
Technology is problematizing death. Technology has frozen
conditions between life and death that had previously only been considered in
mythology, fantasy or philosophy. Until
the advent of the respirator, the cessation of spontaneous breathing
immediately led to the cessation of circulation and unrecoverable brain damage. Since the 1960s we have continually expanded
the gray areas between life and death, stabilizing one process after another in
the previously inexorable path from life to dust.
Technology did not really create this gray area, but
extended it and made it manifest. Death has always been a process, rather than
a clearly binary state. In the Buddhist
or Parfitian (1984) view to which I am partial, there is no essential or real
identity in things. The boundaries we
draw around “life” and the “self” are arbitrary, motivated by specific
interests and purposes. Life and the
self have no essential reality which can be definitively discerned, or
boundaries which can be definitively marked.
Rather there are a variety of processes involved in being born or dying,
processes involved in the illusion of continuous self-identity. The lines that
get drawn have mostly to do with the politics, economics, culture and
technology of those doing the drawing.
This is the position adopted by Robert Ettinger, back when
he wrote his 1965 manifesto for the cryonics movement, The Prospect of
Immortality.
The simplest conclusion is that there is really no such thing as individuality in any profound sense… Let us then cut the Gordian knot by recognizing that identity, like morality, is man-made and relative, rather than natural and absolute… Instead of having identity, we have degrees of identity, measured by some criteria suitable to the purpose. (Ettinger, 1965: 142-143)
Although Ettinger asserted the illusory nature of the self,
he also passionately felt the desire to persist in the illusion of continuous
personal existence. As a consequence he
proposed freezing the body, and more to the point, the brain, of people right
after their death. If the freezing preserved
enough identity-critical neural information, some future technology might be
able to repair the tissue damage and make the frozen live again. Ettinger, and subsequent cryonicists, have
argued that the frozen are not dead, but should be seen as living patients
waiting for their treatment. Currently
about 100 “patients” are “cryonically suspended” around the United States, and
cryonics organizations are growing in North America and Europe. About a
thousand Americans have signed with one cryonics organization or another to be
suspended upon their death. Money has been raised to build a cryonics facility
to hold 900 frozen bodies and/or heads.
Cryonicists have faced many challenges in establishing their field. State governments and physicians have treated them with open contempt and derision, dismissing their ideas as crackpot or worse. The public generally rejects the supposed ghoulishness of “corpsicles,” while many scientists and physicians who have looked into the field have decided the tissue damage from ice crystal formation will have destroyed far too many cells to make the body or brain recoverable. Cryonicist researchers have been slowly perfecting less destructive methods of freezing, and cryoprotectant substances that are expected to preserve brain tissue are being developed.
The real breakthrough for the acceptance of cryonics came
with the publication of Eric Drexler’s (1986) plan for nanotechnology, Engines
of Creation. Drexler, himself a
cryonicist, sandwiched a discussion of the feasibility of nanotechnological
repair of a frozen ice-damaged tissue into his text. Subsequently he, and other
prominent proponents of nanotechnology associated with the Foresight Institute,
have provided solid scientific grounds for claims that those frozen using
current techniques may be revivable in thirty to seventy years.
In this paper I discuss
whether the expected changes in our definition of death are likely to bear out
the cryonicists’ belief that the frozen will come to be seen as very sick
people waiting for therapy, rather than as “dead.” The definition of death is rapidly changing as the technology for
the maintenance and repair of the brain injured has advanced. Leading theorists of brain death have
recently concluded that the effort to define a final standard of death should
be abandoned in favor of a more pragmatic set of questions (Arnold and
Youngner, 1993; Halevy and Brody, 1993; Emanuel, 1995; Truog, 1997): how dead
is “dead enough” to end life support, transplant organs, put wills into effect,
and bury bodies? This reexamination
has been motivated in part by innovations which hold much relevance for
cryonics, such as the declaration of death for non-heart-beating donor cadavers
(NHBDs), for whom the irreversibility criteria of death have been radically
reinterpreted.
The advance of critical
care technology is also challenging irreversibility. The current definitions of brain death are predicated on the
belief that brain dead patients cannot persist in physical life, but this is
now shown to be untrue (Shewmon, 1998a, 1998b, 1999). Emerging technologies for remediating brain injuries are certain
to deepen the dilemma for the current law and practice around the declaration
of brain death. Conditions previously
considered death will eventually be reversible, requiring the articulation of
new laws, definitions and practices around dying.
In this paper I want to
address four questions. First, how will
current bioethical, legal and technological trends likely effect the definition
of death and personal continuity? Second, given these changes, will the
cryonically suspended always be considered dead, or will society eventually see
the suspended body as a living, but very sick, patient?
Third, given these
trends, will cryonicists always have to wait until they are dead to get frozen?
Fourth, I want to
examine the question of who the re-animated person is likely to be thought to
be. Although most re-animation
scenarios assume perfect re-integration of the previous personality, there are
likely to be serious dilemmas about the identity and status of partially
recovered personalities.
Finally, I will discuss
the cultural and bioethical Singularity that will occur when technologies call
into question any meaningful definition of individuality, personhood, and
citizenship.
The Final Stage of Enlightenment Ethics: Consciousness-Centered
Rights
Individuality is the same thing with development, and it is only the cultivation of individuality which produces, or can produce, well-developed human beings...what more can be said of any condition of human affairs, than that it brings human beings themselves nearer to the best thing they can be? or what worse can be said of any obstruction to good, than that it prevents this? (Mill, On Liberty, 1859)
Within the next few
decades the humanistic Enlightenment, and its ethical framework, liberal
individualism, will reach their telos, their logical and final formulation
(Gaus, 2000). Liberal individualism
asks why a sovereign, rational person should submit to authority, and it sees
the development of the faculties of sovereign, rational persons as the highest
good and end. For our ethical tradition
subjective personhood is the beginning and the end. The expansion of suffrage and equal rights has involved the slow
clarification that rights adhere to subjective persons, not to races, sexes or
property.
We have been slowly
constructing a global consensus that each subjective person should be as free
and equal as possible. The growing percent of the world governed by electoral
democracies and liberal democratic principles is the most tangible evidence of
this trend (Sen, 1999). Although all democracies are flawed, and vary from
liberal, market-oriented regimes to corporatist social democracies, they share
common political assumptions: that all citizens should be equal before the law,
and as free as possible from coercion. The manifest goal of democratic social
policy is, fundamentally, to maximize the utility and capabilities of
subjective persons, rather than to fulfill divine dictates or natural law (Sen,
2000). The partisans of various brands of democracy are as unanimous in this
basic goal as they are divided by their programs for reaching it. Libertarians work towards this goal by
maximizing market freedom and freedom from coercive state power, and minimizing
inequality before the law, while social democrats work to maximize civil
liberties, and minimize the coercion of sex, race and class inequality.
Liberal democratic
humanists have turned from subject to subject, acknowledging the subjectivity
of women, children, animals, the sick and disabled. While we value subjectivity
when we find it, liberal humanism also removes ethical significance from things
that had formally been seen as having it, such as flags, fetuses and the brain
dead.
We are currently in the
final phase of the liberal democratic tradition’s working out of its own
internal ethical logic of making subjective personhood the key to life,
personal identity and citizenship.
Biotech is forcing Western societies to finally discard outmoded
pre-modern ideas about the body and humanness, and to consistently accord
gradations of rights and value to gradations of consciousness, not just to all
breathing human beings (Perring, 1997).
The impetus to junk the
binary “dead or alive” ethics for a graduated continuum of rights, keyed to
neurological status, will be getting an even stronger push in the coming
decades from at least three directions.
First, the ability to gestate fetuses outside the womb will spur a
redefinition of the beginning of life.
Second, the ability to repair brain damage, and even brain death, will
spur a redefinition of the end of life.
Third, the mixing of species boundaries, through transgenic
technologies, will spur a redefinition of the boundaries of humanness.
Neo-natal ethics beyond
viability
Advancing reproductive
technology is deconstructing parenthood and the status of the fetus (Stanworth,
1988). Current American law, codified
in the 1973 Roe v. Wade decision,
asserts two criteria for determining the ethical and legal boundaries of
perinatal rights: the viability of the fetus, and the right of the mother to
control her own body. The Court ruled
that the fetus is not a person under the 14th amendment, but that
once a fetus is capable of surviving outside the womb, i.e. “viability,” it had
claim to interests to be protected by the state. The Court, conservatively, set six months of gestation as the
dividing line between non-viable and viable fetuses. Before the point of viability abortion could only be regulated to
protect the health of the mother, but could not be banned. After viability, at six months, the moral
claims of the fetus on society were sufficient to allow states to restrict
abortion to only cases that threatened mothers’ health or life, if they chose,
on the grounds of the “potentiality of human life.” At the time, Justice
Blackmun acknowledged in internal memos that this line was arbitrary, and
technology has made the viability line more arbitrary since.
Justice O’Connor put
her finger on its contingent nature in a 1983 dissent:
The Roe framework…is clearly on a collision course with itself…As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception. ... The Roe framework is inherently tied to the state of medical technology that exists whenever particular litigation ensues.” [462 U.S. 416, 458 (1983) (O'Connor, J., dissenting).]
Today, using the rapidly advancing techniques of the neo-natal intensive care unit, the threshold of potential extra-uterine viability has been pushed back to 20 weeks, or five months, gestation. Research is being conducted around the world to develop artificial amniotic fluid and methods for extra-uterine gestation. Within the next decade it is likely that the threshold for viability outside the mother’s womb will be pushed back many more weeks, and possibly within fifteen years, that the entire process of fertilization and gestation can occur in an artificial environment (Brink, 1998; Unno, 1993, 1999; Powledge, 1999).
This option will not be
attractive for ordinary parents for many more decades. Nonetheless, as these
the techniques are perfected and outcomes studied with non-human animals, the
ability to rescue a first trimester miscarriage will make the Court’s viability
reasoning irrelevant. What if a mother
has a difficult pregnancy decanted to an artificial womb, and decides in the
fifth month to dispose of the perfectly healthy, and arguably sentient,
fetus. The claim of bodily autonomy and
personal privacy is much more tenuous now, since the fetus is not in her
body. Does the fetus now have
independent interests? On what grounds
and with what timetable does the fetus develop these interests?
The only coherent
framework in Western thought for according gradations of rights to feti
incubated outside women’s bodies is to assign increasing rights as fetal neural
maturation suggest thresholds of cognitive development. When fetuses are able
to experience pain, at some point in the second trimester, the state has an
interest in ensuring that they do not suffer, although not yet in interfering
with the ownership rights of the parents to determine whether to continue or
stop the fetal development. As the
fetus and newborn evolve closer to self-aware personhood, so also do their
moral status. At some point between six months and twelve months after
conception Western law will recognize fetuses as having passed a neurological
threshold to become human beings with a right to life. Perinatal technology does not create this
moral status but will disentangle it from the rights of the mother to control
her own body.
The erosion of death
It is an insult not only to the specific individual, but to human beings in general, to confuse someone who is deceased with a living individual. (Veatch 1992)
Soon after the proposal of a brain death standard of death (Beecher 1968), sides formed to debate how much of the brain must be destroyed for a patient to be declared dead. Veatch (1975) opened the debate by arguing that human beings should be declared dead once they had lost the ability to meaningfully interact with others. Veatch was soon joined by a small, vocal group of “neo-corticalists” (Green and Wikler 1980; Youngner and Bartlett 1983; Gervais 1986; Cranford and Smith 1987). The neo-corticalists argued that the legal boundary of death should be the state of permanent unconsciousness, which marks the death of the person.
Wouldn’t it be more appropriate to say that, even though (the permanently vegetative body) is still alive, this patient is no longer a person, having lost, when her cortex stopped functioning, the physiological base of what is crucial to personhood? (Brody 1988)
In response,
“whole-brainers” (Black 1978a; Black 1978b; Bernat 1989) have defended a
standard requiring complete brain death.
This standard was eventually endorsed by the President’s Commission for
the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research in their report Defining Death (1981), and written into the
Uniform Declaration of Death Act, which has been enacted in 36 states. Those laws declare:
Any individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead. [National Conference of Commissioners of Uniform State Laws, 1980]
The debate in the 1970s
and 1980s made clear that the advantage of the whole brain standard was not
ethical coherence but pragmatism. The
whole brain standard was easier to operationalize, conservatively erred on the
side of life, and was seen as the most radical change that the public would
tolerate. The whole brain definition
was at the outset a compromise between those who preferred a neocortical
definition, and those who preferred the somatic definition. As Botkin and Post (1992) put it:
It is our own conviction that the whole brain death standard probably best balances the conflicting needs within our society, despite the confusion it generates. This is based largely on utilitarian considerations. (Botkin and Post 1992)
The whole brain
standard was adopted as a compromise between the three camps – body death,
whole brain death, and neo-cortical death.
The whole brain death standard was presented to the neo-corticalists as
a conservative version of their standard: if the entire brain was dead, there
could be no possibility of recovery of consciousness. For the body death advocates, it was argued that the death of the
whole brain destroyed autonomic processes, and would lead inexorably to
cessation of respiration and circulation: whole brain death was simply an
extension of the prior standard.
In the 1990s however, there has been an erosion of the
whole brain position, at least in the rarefied circles in which it is
debated. The erosion stemmed from a
variety of growing problems. One
challenge came to the concept of reversibility as a criterion for death. For decades it has been clear that some
patients have been declared dead because they, their decision-makers and
physicians did not want to revive them, even when they could have been
resuscitated. This acknowledgement has
been codified in the Do Not Resuscitate order or DNR.
But it took surgeons at the University of Pittsburgh to
take the next logical step. In 1992,
the University of Pittsburgh Medical Center approved a policy allowing
terminally ill, brain injured patients to be enrolled to become “non-heart-beating
donors” (NHBDs) if their illness allowed the use of their organs. The patients do not meet brain death
criteria, but have brain injuries that make them ventilator-dependent. The procedure involves wheeling them into an
operating theater, turning off their respirator, waiting two minutes, and then
beginning procedures to preserve and remove their organs. As with the DNR, death is not declared
because it is technically irreversible, but because the patient or their
decision-makers decide not to reverse it.
The NHBD procedure has spread to dozens of other hospitals,
and debate has predictably raged about its ethical acceptability. The National Academy of Sciences, for
instance, has published a volume[1]
on the controversy [Herdman, 1997] and the Kennedy Institute of Ethics Journal
has devoted a special issue to it.
In response to the NHBD
issue, some ethicists central to the brain death debate have shifted to the
position that death has become irrelevant (Fost, 1999; Arnold and Youngner,
1993, 1999; Halevy and Brody, 1993; Emmanuel, 1995). Notably, bioethicists Robert Arnold and Stuart Youngner (1993)
have argued that the dead donor rule should be put aside. Wikler (Wikler 1988), for instance, points
out that the circularity of defining those bodies as “dead” which we wish to
withhold treatment from, and then withholding treatment from the “dead.” The
Pittsburgh protocol stretches the current definition of death because vital
organs are only permissibly removed from dead donors – we are not allowed to
“kill” a patient in order to save another.
Linda Emanuel (1995),
the top ethics attorney at the American Medical Association, has proposed that
the law be redefined to recognize a “dying zone” between permanent
unconsciousness and the cessation of respiration. Within that zone we would
allow people to set their own definitions of death, allowing termination of
care and organ removal up to permanent unconsciousness. No one should be
euthanized who is above the zone, and no one should be buried or cremated until
they have stopped breathing.
Another line of
challenge to the whole brain position has come from defenders of the
circulation and respiration standard for death. For instance, Dr. Alan Shewmon (1998), a neurologist at UCLA, has
demonstrated that patients have survived more than ten years after being
diagnosed as “brain dead.” Shewmon’s
research demonstrates that there is nothing essential about the brain for the
regulation and maintenance of the body.
Whole brain advocates argued that the whole brain standard was closely
wedded to somatic death, since whole brain death would lead inevitably to
somatic death. This link is now
revealed to be specious. If the
severing of the brain from its role in somatic integrity were the equivalent of
death, Shewmon argues, conditions such as “cervicomedullary junction
transection plus vagotomy,” involving the complete severing of the brain from
the spinal column, would also be equivalent to death, although the patient
remains conscious and the body continues functioning.
Emerging
neuroremediation technologies will soon bring the unhappy whole brain death
standard into full crisis. Stem cell
research has demonstrated that the brain has the capacity to generate new
pluripotent cells to repair brain damage, and that these cells migrate to
damaged areas and take up necessary functions (Snyder et al., 1997; Yandava,
1999). Adenoviral vectors have been
successfully used to introduce nerve growth factors, and stimulate nerve growth
in damaged areas (Boulis et al., 1999). Parallel research has succeeded in
blocking the chemical pathways that ordinarily suppress neural regeneration in
the central nervous system.
Research is also being
conducted on the use of open lattice silicon chips for creating direct
communication between the brain and electronics. The NIH has a program on Neural Prostheses[2]
coordinating work ranging from interfaces with the optic and aural nerves, to
peripheral and spinal nerve interfaces, to interfaces deep in the brain. For
instance, Dr. Brinton and her colleagues at the University of Southern
California (Krieger, 1999) are working on the implanting of electronic
prostheses to replace the functions of destroyed parts of the brain. They are using VLSI chips that generate
neural network software models, are built in an open lattice structure, and
treated with neurotrophic substrates to encourage the adherence of discrete
neural connections.
Using a similar technique, Roy Bakay at Emory has implanted a chip and radio transmitter in the motor region of a completely paralyzed patient, and taught him to control a computer cursor by thinking about motor actions. The neural messages are transmitted to a radio receiver cap worn by the patient, and then to the computer (Kennedy and Bakay 1998; Kennedy, Bakay, et al., 2000).
Within a decade we
should see basic neuronal prostheses able to assume the functions of damaged
neural tissue. The development of
computing devices using biological materials, and software developed on
biological models, suggests further future convergence between organic
computing, neural network software, and neural-computer interfaces.
Eventually victims of
devastating neurological damage, who would previously have been declared
hopeless or even dead, will be seen as still potentially living patients
deserving of a trial of reparative therapy, unless portions of the brain
holding identity-critical structures are demonstrably and thoroughly
destroyed. If the restoration is
unsuccessful, the patient may then be allowed to completely die.
Beyond anthropocentrism
In June 1999, the U.S.
patent office rejected a patent for a human-animal hybrid or “chimera” that had
been filed by anti-biotech activist Jeremy Rifkin and a colleague. In rejecting the patent, the U.S. Patent Office acknowledged that, although it
has permitted the extensive patenting of biotech-engineered life forms and
human DNA, the 13th Amendment forbids the ownership, and therefore
patenting, of human beings. Since the
Supreme Court, Congress and Patent Office have never defined what a human being
is, they rejected a patent on a transgenic half-human/half-animal which they
considered to be too close to the line.
Transgenics will force
the U.S. and world to define humanness in the coming decade. If not in the first cut, then eventually,
working from liberal democratic principles, the definition of humanness must
focus on cognitive capabilities, subjectivity and self-awareness as the basis
of citizenship rather than the specious, and disappearing, species boundary. For instance, bioethicist Peter Singer and
an international group of activists have organized around the Great Ape
Project. Their proposition is that we
should extend the boundaries of rights first and most extensively to great
apes, since we have the best evidence that they share our capacities for
self-awareness. They propose that great
apes should have the same rights as human children: either we should not allow
children and apes to be killed, tortured or imprisoned, or we should allow
cruelty toward both children and apes.
At the urging of the Great Ape Project, New Zealand has banned medical
experimentation on great apes. Singer
(1990) has extended the argument to a critique of factory farming by arguing
that infant humans and livestock animals have roughly the same mental
capacities, and should therefore be treated equally under the law.
It seems unlikely that
meat-eating will be banned in the near future, or that we will be allowed to
eat babies. But it appears likely that
the trends toward increasing protection of animals’ interests will
continue. Similarly biotech will
continue to create various kinds of chimera, and experiment with enhancing the
intelligence of animals, in ways that will force a consciousness-centered ethic
to supplant anthropocentrism. The first cognitively enhanced animals that can
express themselves unambiguously will cause a dramatic shift in thinking about
the rights of living things.
Rights-bearing contingent on
level of consciousness
These changes will not
come easily, and they will be one of the fundamental political divisions in
coming years, that between biofundamentalism and transhumanism. On the one
side, the biofundamentalists will insist on rights for all humans, conscious or
not, and will condemn and attempt to ban reproductive technologies, transgenic
blurring of species boundaries, and blurring of the definition of death. On the
other hand, the emergent transhumanist worldview will embrace technological
transgression, and keep focused on the cognitive abilities of the various kinds
of life. In other words, transhumanists will be the agents of this final
clarification of liberal democratic laws and ethics.
The controversy now
swirling around Peter Singer’s (1993, 1995a, 1995b, 2000) consistent
utilitarian ethic of life is a harbinger of the struggle to come. Liberal application of a consistent
consciousness-based standard of rights can certainly allow some consequences
that many consider “yucky,” such as the creation of headless or anencephalic
clones for transplant, euthanasia of newborns (Tooley, 1983) and the severely
demented, and more rights for some animals than for some humans, as Singer
proposes (Singer, 1995a; Kuhse and Singer, 1985). But the tangible benefits of the new standard, even more than its
consistency with Western thought, will provide enormous incentives for its
adoption. Few among us will be willing to want to refuse the potential benefits
of medical science on inconsistent yuck-based “moral” grounds. The struggle
over the use of fetal stem cells is an example of this conflict, and the vast
majority of Americans favor using fetal stem cells if it will treat illness.
Table 1 arranges
various kinds of humans and animals on a linear scale of self-awareness and
cognitive complexity, tiered with the rights accorded to them by the Singerian
liberal democratic worldview I have described above.
At the top of this
continuum I have inserted “cognitively enhanced posthumans,” people who are
smarter and faster than Human 1.0.
These posthumans may not agree that they should be in the same ethical
category with mere humans. Biofundamentalists will certainly that the enhanced
are equal to or less than human. The struggle to defend transhuman solidarity
and liberal tolerance between humans and posthumans will undoubtedly be a core
part of the transhumanist agenda.
Table 1: The Future Continuum of Consciousness and Rights
|
Types of
Life Cognitively Enhanced
Posthumans Adult Humans |
Consciousness Mature Personhood |
Rights/Value Right to Vote, |
|
Children Adult Apes Severely Retarded Adults Some Mammals |
Personhood |
Right to Life |
|
Infants Severely Demented Adults Fish Late Fetuses |
Sentience |
Right Not to Suffer Unnecessarily |
|
Permanently Embryos and Early Fetuses Brain Dead Anencephalic Newborns Headless Clones Plants |
Non-Sentient |
No Rights: |
The Brain Dead and Frozen: Living, Dead, or Missing?
Do We Really Want the Frozen
to be Living?
If a consciousness-based
ethical standard was institutionalized in the coming decades, it is unlikely to
have any immediate impact on the cryonically preserved. In 1965 Ettinger argued that the frozen
should be reclassified as living citizens: “The frozen… will be property owners
and tax payers” (Ettinger, 1965: 102).
Similarly, Alcor, the largest cryonics organization in the world, has
argued that cryonics patients should be considered alive on the basis of
potential from revival.
Stephen Bridge (1994) and Alcor (2000) have summarized the legal
advantages and disadvantages of the cryonics patient being considered dead or
alive. If the cryonaut is dead, she can
legally donate her body to Alcor for storage under the laws governing anatomic
gifts. But she could decide to be
“treated” at Alcor if she were considered alive. If the cryonaut is dead she can use life insurance policies to
fund her suspension, and estate mechanisms to leave money for maintaining
herself in cryostasis and providing for herself after reanimation. But if she was “alive” she could also leave
her money in trusteeship.
The principal reason
cryonicists are concerned about the definition of their status is because many
would like to get frozen before they are legally dead, and to be treated as
patients facing emergent care rather than as corpses. Not only must they wait until disease has potentially ravaged
their brains, but “after death” they can be subjected to delays in freezing,
and even autopsies, which make successful conservation of neural information
impossible.
Thomas Donaldson has
most recently made the case for premortem freezing. Donaldson has an inoperable
brain tumor which is currently in remission, but which he believed was life
threatening in the late 80s. He sued the state of California for the right to
have his cryonics provider, Alcor, be protected from murder or assisted suicide
charges for assisting in having his head removed and frozen. The California
courts rejected his suit on appeal.
How likely then are cryonauts to be redefined as “living enough”
to have rights, such as the right to be frozen without a declaration of death?
When are Non-Persons Treated
as Actual Persons?
Continuing
to care for a patient with an uncertain prognosis is the morally and ethically
correct thing to do. Many patients that
we would call “dead” today are likely to be reclassified as “seriously ill, but
treatable” in the future.
Cryocare
When should potential
persons be treated as actual persons? An embryo encodes the information for
a potential future self-aware person, just as frozen brain tissue does. Of course, the embryo does not contain a
pattern of self-aware personhood, while the frozen adult brain does potentially
contain that pattern. But is that
enough to treat the frozen adult brain as “alive?” Clearly the frozen do not
meet a consciousness-based definition of life based on continuous, waking
sentience, much less self-aware personhood.
On the other hand, if such a standard is applied too rigidly, people who
are in deep sleep, who are hypothermically suspended but revivable[3],
or who have been placed in temporary therapeutic states of arrest, would also
be dead. We want to continue to treat
some non-sentient potential persons as “alive,” so which ones?
In my Buddhist/Parfitian
ontology “living” and “dead” cannot be defined absolutely, but only for a
specific historical context. So, rather than asking which people are really
alive or dead, the question resolves to the conditions under which Alcor’s
definition of the frozen as alive might be accepted by law and public
opinion. The key factor in social and
legal decisions to treat potential persons as actual persons is the likelihood
that the potential will be actualized: how likely is it that the potential
person will become a real person? Sleeping or temporarily comatose people are
likely enough to return to conscious personhood to continue to possess their
rights as living persons. Adopting the
Alcor definition of life would mean that the persistence of information encoding
memory and personality inside the frozen brain should be considered life, even
if that information will never be re-animated into self-awareness. But
if a frozen person is sent to float eternally in space, what is the point of
considering that a state of “life?”
The likelihood of becoming a person, or returning to
personhood, is actually a product of two factors: the ability of the
non-persons to become a person again, and the intention of socially legitimated
decision-makers to return non-persons to personhood. The NHBD controversy has
made explicit what was implicit with DNRs; the intention to resuscitate a
heart/breathing-arrested person partly determines when in the dying process a
person is declared dead. People in cardiac arrest are treated as living persons
to be revived if they are otherwise healthy and revivable. But if they are sick and will never return
to consciousness, or they and their decision-makers don’t want them revived,
they are treated as if dead. The decision-maker has to have social sanction; if
a nurse decides not to resuscitate someone in arrest, they can be charged with
murder. New Jersey’s brain death law,
under pressure from Orthodox Jews who do not accept brain death as a death, allows
a religious exception to the brain death statute. In other words, the brain dead are dead in New Jersey unless
their relatives, who are part of a powerful religious lobby, don’t want them to
be. A fetus is treated as a patient if its mother intends to bring it to term,
or if the state has enacted fetal protection legislation to protect fetuses
from drugs or violence. But it is not
treated as a patient if it is so disabled that it will not survive, or it is to
be aborted.
Presumably the
custodians of cryonauts will always desire their eventual reanimation, but they
will always be a vanishingly small proportion of the population. So the changing social status of the frozen
will be determined by changing evaluations of the likelihood that the frozen can
be successfully reanimated. In effect,
although the frozen have been pragmatically classified as dead because they
have gone missing from the world of the living, they might be reinstated to the
world of the living if there is evidence they were just on a long journey.
There are several other
circumstances in which the status of a person as dead or alive is determined by
the statistical likelihood of their return. For instance, the classification of
someone as “permanently vegetative,” rather than as simply temporarily
comatose, is a matter of statistical probability. American practice is based on the recommendations of the
Multi-Society Task Force on the Permanent Vegetative State (1994) that patients
should be considered permanently unconscious if unaware for three months after
non-traumatic injury (such as chemical overdose) or 12 months after a traumatic
brain injury. Once classified as
permanently vegetative, caregivers and physicians are given much more latitude
for conservative treatment, often in effect allowing death to “take its course.”
Another cognate
situation is the missing person. When someone goes missing on the high seas, or
doesn’t return from war, common law has long held that these missing persons be
declared dead for practical reasons. If
the circumstance of the missing person’s death is uncertain, and there is some
possibility they have been shipwrecked, or taken hostage in a secret Vietnamese
prison camp, or are simply on the lamb to avoid child support payments, the
court imposes a waiting period of some years before death may be declared. The Uniform Probate Code, adopted by 18
states and more or less in effect in the rest, declares death to have occurred
after a five year waiting period. If
there continues to be strong evidence that the missing person may be living,
judges may put off declaring death even after this waiting period. Once the absentee is declared dead, most
states protect the heirs and those who declared the person dead from liability
for wrongly distributing their property, and otherwise harming their interests.
In some sense, although
we know the whereabouts of their body, the cryonically suspended person is a
missing person. They are in a condition
from which they may or may not return.
Even as technology begins to convince the public and the courts that the
suspended could theoretically be restored, there is the possibility that they
have suffered information loss beyond the ability of technology to restore. The
courts are very likely to continue to declare them dead, out of pragmatism, in
order that their affairs and their heirs not be left in limbo awaiting their
eventual potential reanimation. For the frozen to be declared alive again will,
like the soldier returning from twenty years in the jungle, await the
successful reanimation of at least one cryonaut, thereby establishing that the
probability of return is greater than 0.
Cryonics Patients in the
Post-Neuro-Remediation Era
Alcor points out that
the current definition of death is simply a confession of the lack of scope of
current medicine.
The pronouncement of death is thus an arbitrary (if admittedly very practical) medical and legal construct, which amounts to a statement saying in effect: “Your affliction has exceeded our current level of medical skill and we are currently powerless to restore you to function; therefore we give up.” (Alcor 2000)
As technology erodes the brain death standard, the future operational definition of “dead enough” will become something more like: “The patient cannot be revived to self-awareness, with continuity of previous memories and personality, because they have irretrievably lost that information, or we are unable to recover them, or they or their guardians do not wish them to be revived.”
Once there is
successful reanimation, or there is substantial proof of revivability from
animal experimentation, the status and rights of the cryo-suspended will
gradually increase. Halperin (1998) in The
First Immortal depicts this quite well – people may not be charged with
murder for malicious thawing, but it will become an increasingly serious
offense, keyed to the likelihood that the person could have been
retrieved. Ettinger had proposed in
1965 that
Perhaps the law will come to recognize
three classes of people…those in suspended animation, those frozen after death,
and those who are thoroughly dead because they were burned up, well rotted,
lost at sea, or otherwise considered poor bets. (Ettinger, 1965: 94)
Halperin took up
Ettinger’s proposal and extended it, suggesting a legal code that recognizes
four categories of the dead, with increasing rights:
(1) the irrevocably dead, that is, cremated, lost at sea, et al. (2) Persons frozen or otherwise DNA-preserved, but with hopelessly irreparable brain damage. (3) Persons frozen after death with brain tissue arguably saved. (4) Persons in suspended animation, frozen prior to death and any material brain decay. (Halperin, 1998: 208).
Halperin’s fourth
category returns again to the real issue in the debate over the status of the
frozen; will it ever be legal to get frozen before a declaration of death,
ensuring the greatest possible preservation of neural information?
Will We Always Have to be Legally Dead to Get Frozen?
Current legal and medical criteria for pronouncing death are usually irrelevant to the patient’s ultimate prognosis if cryonic suspension is begun promptly and premortem conditions (multi-infarct brain disease, respirator brain, etc.) have not obliterated brain structure. However, in practice the necessity to wait until such criteria are met may result in serious or even irreversible injury in specific cases. (Alcor, 2000)
The principal reason
cryonicists are concerned about the definition of their status is because many
would like to get frozen before they are legally dead, and to be treated as
patients facing emergent care rather than as corpses.
So will people always
have to be dead to get frozen? Maybe
not. So long as being frozen is
considered ‘dead,” helping to freeze someone not already dead will be
considered murder or “assisted suicide.” When Thomas Donaldson fought the
California courts unsuccessfully in the early 1990s for the right to have his
head removed and frozen the California Supreme Court ruled that, even though
suicide was legal, Donaldson had no right to “state assistance” in suicide, and
that the “assistance” of the cryonics team could be charged as murder. So the ability to freeze people before they
are dead will depend on legalizing a very liberal set of acceptable modes of
assisted suicide.
The majority of Americans have supported and continue to support a right to assisted suicide. People with higher education are more secular, and support greater personal freedom, and an ever increasing proportion of Americans have subjected themselves to higher education. The long-term prospects for liberalized assisted suicide, and many other personal freedoms, appear to be rosy. This graph shows support for the statement “When a person has a disease that cannot be cured, do you think doctors should be allowed by law to end the patient’s life by some painless means if the patient and his family request it?” A majority of Americans have said yes for twenty-five years, and that support should grow stronger in the coming decades.
Figure 1: Percent of Americans
saying “yes” to “When a person has a disease that cannot be cured, do you think
doctors should be allowed by law to end the patient’s life by some painless
means if the patient and his family request it?”
Benson (1999)
The influence of
right-to-life Christian groups and conservative doctors is being fought by
increasingly successful choice-in-dying organizations, who have succeeded in
putting a number of assisted suicide laws on the ballot in a number of states,
and of passing an assisted suicide law in Oregon. While the Supreme Court did not rule that assisted suicide is a
constitutional right in 1997, it also ruled that states are free to legalize
assisted suicide. The liberalization of
assisted suicide may not have come as quickly as Halperin (1998) predicted in The
First Immortal, in which President Gore celebrates Jack Kevorkian with a
fireworks display sometime in 2001. But I think it is safe to predict that
Boomers will be increasingly assertive about choice-in-dying in the next three
decades.
After Proof of Reanimation:
Suspension as an Experimental Treatment
The acceptability of an experimental procedure increases as the risk
of mortality declines. Once there has
been substantial proof that reanimation is possible, suspension will be seen as
an experimental treatment option with a greater than 0 chance of success. Ralph
Merkle made the argument for defining cryonic suspension as a clinical trial in
his widely read 1994 paper on “The Molecular Repair of the Brain.”
A new AIDS treatment might undergo clinical trials lasting a few years. The ethical dilemma posed by the terminally ill AIDS patient who might be assisted by the experimental treatment is well known. If the AIDS patient is given the treatment prior to completion of the clinical trials, it is possible that his situation could be made significantly worse. On the other hand, to deny a potentially life saving treatment to someone who will soon die anyway is ethically untenable.