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?
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, 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:
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?”
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.”
By the time the feasibility of reanimation has been demonstrated, and the risk of mortality from it minimized, medical technology will presumably be sufficiently developed that far fewer people will need to make use of such an extreme step. In other words, by the time the frozen are seen as living people undergoing an experimental procedure, no one will be getting frozen anymore.
Who Will the Reanimated Be?
As Ettinger and Halperin suggest, consistent with the consciousness-centered ethics articulated at the beginning of this article, the status of a reanimated person will be determined by how much of that person has survived. One of the key assessments that will need to be made about the status of every frozen brain is whether it is likely to have retained sufficient information to recover the person who was frozen. Long before society is faced with those decisions, however, the stage for them will be set by debates over the care and status of the brain injured. In an era of common neuro-remediation of severe brain injuries, we will be faced with the meaning of putting back together a living person who has lost all identity-critical information. Will we say that such a person is identical to the previous person, with their rights and obligations, or will they be considered a new person?
Alcor has already forewarned cryonauts of this possibility:
By the time we are able to reanimate the frozen, we will probably be able to predict the likelihood of recovering identity-critical information with some accuracy. In any case, making this prediction will be important for families who are considering attempting reanimation. If recovery is unlikely, the person’s advance directives or surrogate decision-makers should specify whether reanimation should be attempted, with the likely result of a new person. Once the person is revived, they will then need to be assessed for whether they do in fact meet the continuity requirement. If there is a new person, there will be a strong case for them to be considered a successor or relative of the deceased, but not the same person.
We might deal with such eventualities the way we deal with pregnant brain-dead women, whose bodies are also sometimes used to incubate their pregnancies to term. Some argue that the use of women’s bodies after brain death is a violation of their “human dignity,” while right-to-life groups have insisted on maintaining the pregnant brain-dead body as a baby incubator. But physicians and courts have generally deferred to husbands’ and relatives’ decisions, taking into account the dead woman’s prior expressed feelings about death, babies, biological motherhood and adoption. In the absence of binding instructions from the persons who had been suspended, their surrogates would have the right to make decisions about their reanimation. In the case of the brain-dead body with likely erasure of personal identity, the patient’s prior wishes and caregivers would likely be given weight in determining whether to attempt remediation.
Potential people such as a fetus or the person to be reanimated from damaged brain tissue don’t have rights in themselves. But we do recognize the rights of the former person, the woman or the person who was suspended, to have some say over the disposition of their body, property and affairs.
The Bioethical Singularity: Beyond Personal Identity
Despite our every instinct to the contrary, there is one thing that consciousness is not: some entity deep inside the brain that corresponds to the ‘self,’ some kernel of awareness that runs the show, as the ‘man behind the curtain’ manipulated the illusion...in The Wizard of Oz. After more than a century of looking for it, brain researchers have long since concluded that there is no conceivable place for such a self to be located in the physical brain, and that it simply doesn’t exist. (Nash, Park and Wilworth, 1995)
Just as technology drives us to clarify that we value continuous, discrete self-aware persons, more than the platforms they come on, so it will also force us to acknowledge that those persons are fictions. Technology will eventually develop the capacity to translate human thought into alternative media (Kurzweil, 1999). Such a technology threatens the boundaries and continuity of the self (More, 1995; Sandberg, 2001), the autonomy of the individual and her decisions, and the useful fiction of social equality between persons.
When one can easily modify, borrow, or drop, merge with others, and separate, any of their external and internal features … there won't be distinct lines between individuals anymore. There is a good term "dividuals" for self-reconfigurable entities; also, there is the aspect of overlap between entities in a liquid functional ecology. Could you say whether forests, or patches of grass, are all equal? How about more structurally fluid things, like Internet communities, or ideas? Knowledge clusters will be more fluid and intermixed than anything we know, and the concept of equality would look to them as a memetic relic. (Alexander Chislenko, recorded by Dominguez, 1997)
Threats to the self will develop in many areas. Our control over the brain will slowly make clear that cognition, memory and personal identity are actually many processes that can be disaggregated. We will have increasing control over our own personalities and memories, and those of our children. Full nano-replication of the mental process opens the possibility of identity cloning, distributing one’s identity over multiple platforms, sharing of mental components with others, and the merging of several individuals into one identity.
When we get to the point where neurological functions can be controlled, designed, cloned, shared, sold, and turned on and off, the illusion of continuous, autonomous self-identity will become more obvious. Once we cast off this fundamental predicate of Enlightenment ethics, the existence of an autonomous individual, we are beyond the ethical frameworks of liberal democratic law and bioethics. We have already begun exploring this territory in the law without realizing it. For instance, who is culpable in the case of multiple personality disorder (Braude, 1996)? Dilemmas of this sort are certain to multiply.
There are ethical worldviews that do not have the autonomous individual at their core, from theocracy to Communism. Let us hope that, if we begin to take these thought experiments serious now, we will have more satisfactory alternatives, built on liberal democracy rather than negating it, when the time comes.
The current definitions of death, worked out twenty years ago to address the technology of the respirator, are already falling apart. Some are suggesting we dispense with “death” as a unitary marker of human status, while others are pushing for the recognition of a neocortical standard. The twenty first century will begin to see a shift toward consciousness and personhood-centered ethics as a means of dealing not only with brain death, but also with extra-uterine feti, intelligent chimeras, human-machine cyborgs, and the other new forms of life that we will create with technology. The struggle between anthropocentrists and biofundamentalists, on the one hand, and transhumanists on the other, will be fierce. Each proposal for a means of extending human capabilities beyond our “natural” and “God-given” limitations, or blurring the boundaries of humanness, will be fought politically and in the courts. But in the end, because of increasing secularization, the tangible advantages of the new technologies, and the internal logic of Enlightenment values, I believe we will begin to develop a bioethics that accords meaning and rights to gradations of self-awareness, regardless of platform.
This transformation is unlikely to cause the cryonically suspended to be automatically reclassified as living however. For pragmatic reasons, and due to the uncertainty of information loss, the cryonically frozen are likely to remain dead until proven living. They will be in the status of the soldier missing in action, who has been thought dead, his wife remarried, his estate settled, who is suddenly rescued by some future nano-Rambo. Once there has been tangible proof that the prisoners are still in their camp, there will be a re-evaluation of the status of the frozen. Getting frozen will then come to be seen as a plausible alternative to death, rather than a bizarre way to preserve a corpse. By this point, however, few people will presumably need to make use of this option.
Since this change in the public perception of the status of the frozen is many decades off, and the frozen will be seen as “dead” in the meantime, cryonics organizations should focus more attention on collaborating with choice in dying organizations . Most proposed assisted suicide statues would not allow cryonic suspension as a method. But with secular trends that support further liberalization, and the growing organization of the majority in support of assisted suicide, it seems likely that the coming decades will see laws that allow cryonicists to choose suspension as a part of their “suicide” method.
The suggested shift toward a personhood standard for social policy would dramatically effect the reanimated. A personhood standard would open the possibility that the legal identity of a reanimated person would be contingent on their recovery of some threshold of their prior memory and personality. Advance directives of the suspended should address the question of whether they are interested in repairing and reanimating their brain, even if nanoprobes or other diagnostic methods suggest that the resulting person will not be them, but some new person.
Finally, I have touched on the truly unpredictable, the equivalent of a bioethical, moral and legal Singularity: the fundamental problematizing of the self. Once technology has fully teased out the constituent processes and structures of memory, cognition and personality, and given us control over them; once we are able to share or sell our skills, personality traits and memories; once some individuals begin to abandon individuality for new forms of collective identity; then the edifice of Western ethical thought since the Enlightenment will be in terminal crisis. The political and ethical trends that are predictable now, as the Enlightenment works towards its telos, will become unpredictable. As transhumanists work to complete the project of the Enlightenment, the shift to a consciousness-based standard of law and ethics, we must also prepare political values and social ethics for the era beyond the discrete, autonomous individual.
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 An issue of some relevance to the cryonics community is premortem cannulation and administration of anticoagulants and vasodilators, which the National Academy report judged acceptable.
 Guidelines for the clinical determination of brain death call for patients in hypothermia to be rewarmed before diagnosis can be made. There are cases of victims of accidents in icy water being reanimated after several hours of hypothermia with negligable brain damage. Increasingly, research is being conducted into the therapeutic use of hypothermia during surgery, and after traumatic brain injuries. Dr. Peter Safar at Pittsburgh’s Center for Resuscitation Research is pioneering short-term hypothermic suspension for the critical injured, who have not responded to CPR and meet the clinical criteria for death. Once they are transported to an emergency care unit, they are placed on a bypass machine and respirator, and can be re-animated and treated. The Center is also working on chemical and gene therapies of the prevention and treatment of brain damage from the suspension procedures (Tisherman, Rodriguez and Safar, 2000; Safar et al., 1999).