Cryopreservation and the death of legal personhood

ABSTRACT

In the more than half a century since James Bedford reportedly became the first person to undergo whole body cryopreservation in 1967, the number of cryogenic ‘patients’ and people who have registered to be cryopreserved upon their death has slowly but steadily increased. These preserved ‘patients’ present problems for both bioscience and bioethics. But they also present problems for several core legal principles – including the concept of legal personhood in private law. This article introduces the concept of private law personhood and identifies its three core tenets: private law personhood terminates at death; it is focused on the self-interested individual; and it is ill-equipped to weigh the interests of the individual against those of society. This article argues that each of these core tenets is fundamentally challenged by the existence of cryopreserved individuals, who have an awesome and ongoing physical presence despite being technically dead, but are nonetheless entirely reliant on the care of the living for their ongoing maintenance – even when such care causes the living to suffer harm.

KEYWORDS:

• Cryopreservation
• death
• personhood
• relationality
• private law

Introduction

In 1970, Dennis and Terry Harris placed their elderly parents in cryonic preservation in California. Five years later, the cryonics facility that housed the couple (Cryonic Interment) went bankrupt and the liquid nitrogen necessary for the preservation of their cryopreserved bodies was cut, leading the bodies to thaw and eventually decompose (Smith, 1983, p. 131). The significant negative press, coupled with the large jury award for damages, that followed led one contemporary commentator to suggest that Cryonic Interment’s bankruptcy and the subsequent litigation had ‘all but doomed the future of the cryonics movement’ (Smith, 1983, p. 131). This, it turns out, has not been the case.

Whilst it is difficult to know for certain just how many people are currently in a state of cryonic preservation in the small handful of cryonics facilities that exist across the globe, estimates generally range between 500 to 1,000 (up from the 34 or so cryopreserved in the early 1980s) (Smith, 1983, p. 131). Many thousands more have signed up (and, where necessary, paid up) to become cryonic ‘patients’ after their (legal) death. More broadly, the ongoing COVID-19 pandemic has seen public interest in cryopreservation rise to record highs (Wilson, 2021). And more cryonics facilities are opening their doors in more countries, something that will inevitably lead to an increase in both public awareness and availability of cryopreservation.¹ Clearly, cryonics is not going anywhere.²

Much has been written about the challenges presented by cryopreservation from a (bio)ethical or philosophical perspective – so much so that a new field of ‘cryoethics’ has emerged in the literature (see, e.g. D. M. Shaw, 2013). For its part, however, analysis of the legal implications of cryonic preservation has been somewhat piecemeal, and has not yet been extended to a number of core legal concepts. As cryonics begins to come out into the open, then, this article is concerned with the very real challenges this new death technology directs at one of the foundational concepts underpinning our private law system: that of legal personhood.³

This article is divided into two parts. As the first part explains, private law, broadly defined, refers to the various bodies of law that govern how we interact with each other as private individuals (rather than with the state). In private law, the concept of personhood is of great importance as it determines who is and is not the subject of legal rights and duties, and who can enter into legal relations with others. This article draws on recently (re)developed analytical theories of legal personhood (of which Naffine, 2009, is indicative) to argue that personhood in private law is an abstract concept, capable of being broken down to its constitutive parts and reconstructed as needed to fit the circumstances. As abstract as it might be, however, private law personhood is not value-neutral. It is and has always been developed with a series of normative judgements at its heart, these judgements building to create a paradigm, and, crucially for our purposes, mortal, person.

The central argument of this article, set out in its second part, is that the mere fact of cryogenic preservation presents a series of formidable challenges to our current understanding of personhood in private law. This part argues that, in their massive stainless-steel vessels, the awesome presence of the cryopreserved requires private law to reconsider its stance on death as the terminus of the legal person. The individuals contained within these vessels cannot act for themselves, and are necessarily reliant on those around them for their upkeep and maintenance. In this way, cryopreservation also challanges the hyper-individualistic and self-interested approach to personhood prevalent within private law. Finally, this article argues, the massive cost – both in terms of human labour and natural resources – that comes with cryopreservation will eventually force private law into a reckoning it is ill-equipped to deal with, where the interests of the (definitely) living will be weighed against those of the (potentially) dead.

These arguments might appear somewhat unheralded, if not hyperbolic or downright apocalyptic (particularly so given this article does not take it as its task to suggest solutions to the challenges it identifies). After all, people have been availing themselves of cryonics for at least six decades now with very little involvement required by the courts (Huxtable, 2018, p. 480). And, as we have seen, the number of people who have in fact been cryopreserved to date is relatively low. But even if mass cryopreservation is not currently a reality, there is a real chance that it will be within our lifetime. And even if not, there will always be those who are more than happy to take up what D. Shaw (2009) calls ‘the Cryonic Wager’: to bet on what is currently, and likely to be for some time, the remote hope of reanimation rather than give in to the permanence of death (pp. 520–21).

In any case, and regardless of the actual numbers, the fact of the matter is that even a single cryopreserved individual, capable of enduring across time and ‘outliving’ their family and friends, if not their entire society, can and does cause problems for our conception of personhood in private law. Those on the fringes – be it of society or of life itself – often do.

Private law personhood

Before we begin, it warrants noting that this part (and indeed this article as a whole) is concerned with the concept of private law personhood as it exists in common law legal systems – that is, and speaking generally, the legal systems of countries with historic ties to England. This article does not directly consider personhood in the private law of civil law jurisdictions.

What is private law?

Given it is one of the broad organising principles of the curricula of many law schools (so frequently considered, as it is, as one side of a public/private dichotomy) (Merrill, 2021), it is surprisingly hard to pin down a definition of ‘private law’. Put at its most general (and its most generic), ‘[p]rivate law supplies the tools that make private ordering possible’ (Merrill, 2021, p. 575). It both protects, and places boundaries on, the discretionary decisions that individuals make when going about their lives. The decision to sell my house, for example, invokes property law (is the impressively heavy water fountain in the back garden a chattel that I can take with me, or a fixture that I am required to leave behind?) and the law of contract (does the deed of sale contain a term allowing me to terminate the contract should the buyer not obtain adequate finance in time?). And if I hit an innocent pedestrian with my moving van when relocation day arrives, I am likely to be liable in the law of tort. The fields of property, contract, and tort (amongst several others) are all situated firmly within the private law sphere. In contrast, public law – via its core fields of criminal law, constitutional law, and tax law, to name but a few – focuses (unsurprisingly) on public good, and on the state’s interactions with (and regulation of) us as public citizens.

What is personhood in private law?

Legal personhood is something of an amorphous concept. Put simply, and speaking in very broad terms, legal personhood operates as a boundary, identifying (and itself being defined by) entities (for lack of a better word) capable of holding rights, owing duties, and entering into legal relations with others.

Before we go any further, however, it warrants noting that the concept of legal personhood in private law does not exist in isolation. Indeed, explicit theoretical explorations of private law personhood are few and far between. Rather, it is accepted that considerations of personhood in one area of law will have both implications and ramifications for the concept of personhood in other areas. Here, the ongoing debate surrounding the personhood (or otherwise) of apes, elephants, and other ‘self-aware’ animals is indicative. The US-based Nonhuman Rights Project, for example, fights for the legal recognition and protection of the rights of these animals, and in particular their rights to bodily integrity and bodily freedom (Nonhuman Rights Project, n.d.). The existence of these rights, so the Nonhuman Rights Project argues, is sufficient to ground a writ of habeas corpus (literally a demand to ‘produce the body’), requiring judicial review of the ongoing captivity of the animal or animals in question in any given case (Nonhuman Rights Project, n.d.). Habeas corpus, whilst available against private individuals, is no creature of private law – rather, its roots lie in the emerging British constitutionalism (a distinctly public law notion) of the 16th and 17th centuries (Farbey et al., 2011, ch. 1). But the rights to bodily integrity and bodily freedom that the Nonhuman Rights Project fights for in the habeas context are the same rights that ground the private law claims of assault, battery, and false imprisonment, and it is easy to see how a successful claim of personhood in the former context could be used to support an argument for personhood in the latter.

It also requires mention that legal personhood has been the subject of much debate over the preceding centuries, with the concept variably being used to champion the innate rights of the natural, embodied person, and as a positivist legal fiction that has no formal content and, as a result, can extend to non-natural entities such as corporations (Van Beers, 2017, pp. 568–9). The result is a modern conception of legal personhood that is a ‘confused intermixture’ of past theories that have never been entirely displaced, and a ‘messy imbrication’ of both natural and non-natural persons (Van Beers, 2017, pp. 569–70). Against this confused theoretical backdrop, and in an increasingly complex world that problematises the possibility of clean, systemic delineations in law (Grear, 2013, pp. 76–7), a growing number of scholars argue for an analytical conception of legal personhood (which, for our purposes, we will consider in an explicitly private law context) as abstract, malleable and impersonal (see, e.g. Hamilton, 2009, pp. 20–22; Grear, 2013, both drawing on the work of Ngaire Naffine). In short, we might describe it is a cluster concept (Naffine, 2009, pp. 46–7). This view, which follows generally in the positivist footsteps described above, sees the legal person as a constellation of rights and duties, with the particular rights and duties that make up a particular legal person differing between different legal persons, and at different stages in that legal person’s legal life. In this way, Grear (2013) describes legal personhood as ‘plastic’. This means that the concept of private law personhood can be dismantled and divided into its constitutive parts – the different rights, duties, and relations that make it up – and those parts recombined again and again in ever-varying formations depending on the entity in question (Kurki, 2019, pt. II).

Take the ‘paradigm case’ of legal personhood: the adult with full capacity. I am an adult human with full capacity. As such, I have the right (and the ability) to sell my house (and the duty to actually convey the house to the buyer should a contract of sale be entered into), just as I have the right (and the ability) to marry my partner should I so choose, and the right not to have my bodily integrity interfered with without my consent. (In other words, I have the right not to be punched in the face.)

But these rights and duties can be disarticulated and recombined with other rights and duties in the context of other legal persons. Minor children, for example, certainly have a right to bodily integrity, but this right is slightly more limited than in the paradigm case of personhood. Whilst there are debates as to its efficacy and its appropriateness, for example, at least for now parents in many jurisdictions are legally permitted to punish their minor children by physical means (although strict limits are in place).⁴ An attempt to use physical force as a means of punishing an adult child is to commit the tort of assault. And minor children certainly do not have the ability to enter a contract, or to get married.⁵ Corporations, on the other hand, are undoubtedly capable of entering into contracts, but do not have a right to bodily integrity (having no body to speak of), nor do they have the right to marry. At the same time, corporations have rights and duties that I, as an adult human with full capacity, do not necessarily have. Corporations can freely sell portions of themselves (in the form of shares) to the public, for example – an act that is only occasionally countenanced when performed by an adult human.⁶ Yet, at the end of the day, children and corporations are legal persons in private law in the same way as I am.

Private law personhood is humanistic and anthropocentric

As we have just now seen, because of its conceptual abstraction, legal personhood is a highly flexible institution. For this reason, the concept of legal personhood, taken at this high level of conceptual abstraction, is not wedded to any particular person or idea of a person. There is no reason, at least in theory, for example, why this highly juridical notion of legal personhood cannot extend to animals, AI, or the environment (Naffine, 2009, p. 49).

Be that as it may, however, we must acknowledge that we do not apply abstract legal concepts at the point of abstraction. Instead, as Grear (2013) points out, we apply these concepts in a ‘socio-materially “thick” world’ of ‘flesh-and-blood’ (p. 86). In the same way, we do not view abstract legal concepts through a neutral lens. Instead, those who decide cases and write laws interpret these legal concepts through the lens of their own experience, replete with their own moral, metaphysical, and even political considerations (Naffine, 2009, p. 50; Pietrzykowski, 2018, pp. 25–7). Thus, as Naffine (2021a) has pointed out, the paradigm legal person is not ‘generic’, but rather an able-bodied and rational adult male: ‘Considered as a man, law’s template person is in fact a highly specific member of the population and he is a minority member. His characteristics match those of his makers. This is no accident’ ([9]).

This focus on the adult male in our treatment of private law personhood has come about because of societal, rather than abstract legal, forces. For many centuries, for example, women in England and its colonies were not considered the ‘right sort of people’ to be persons in law, lacking the natural value and innate superiority of the white, educated, wealthy male as they were (Naffine, 2021b). And so, for many centuries, women in these jurisdictions were simply not considered legal persons. The same was true for the people of colour held in chattel slavery in the American South, and, in some jurisdictions, men who did not own land.

Fortunately, the emergence of liberal political theory, which advocates for the freedom and equality of all individuals regardless of gender, race, and class, has resulted in a significant broadening of our conception of legal personhood in the past century or so (Arstein-Kerslake et al., 2021, p. 532). But the societal forces that imbue our understanding of legal personhood are not limited to gender, race, and class. On a much broader and deeper level, personhood in private law is necessarily constructed through the lens of humanism, in this context meaning the belief that humans have certain distinctive features and a particular moral status that separates them from other, lesser, animals (Pietrzykowski, 2018, pp. 27–8). After all, those who decide cases and make laws are all, at least for now, human. Even corporations – certainly legal persons but certainly not, themselves, natural or physical persons – are, at their core, made up of human beings to whom the actions of the corporation are frequently attributed (see, e.g. Grear, 2013, p. 79; Ripken, 2019, pp. 29–34).

As a result of its humanistic underpinnings, legal personhood is fundamentally anthropocentric in the way it is employed and the goals it is used to achieve. As Pietrzykowski (2018) states, legal personhood ‘treats legal order as an institution subordinated and dedicated exclusively to the interests of the human being’ (p. 28). Even recent and exciting forays into expanding the concept of legal personhood to include specific environmental features – such as the Whanganui River in New Zealand and the Río Atrato in Colombia – run the danger of contributing to, rather than counter-acting, this anthropocentrism as they reflect merely the imposition of a foreign apparatus aimed at regulation and governance for the benefit of humans onto nature (Reeves & Peters, 2021).

For the purposes of our discussion of cryogenics, however, the interlinked humanism and anthropocentrism of private law personhood is important for one key reason: both take the human subject as their focus, and to be human is to die – so much so that a commonly used (albeit somewhat elegiac) synonym for ‘human’ is ‘mortal’. Here, Jonas (1992) notes: ‘Two meanings merge in the term mortal: that the creature so called can die, is exposed to the constant possibility of death; and that, eventually, it must die, is destined for the ultimate necessity of death’ (p. 34).

In this way, then, human beings are ‘through and through temporal’ creatures, and this finitude is evident in our very basic conceptions of time, space, and place (Harrison, 2003, pp. 2–3). Thus, we divide the past into historical epochs that are born and die, and stand in awe of the historical ruins that represent the dissolution of something (human) into nothing (nature) (Harrison, 2003, pp. 2–3). And many argue that this human commitment to mortality is hardly a bad thing. Rather, the constant turnover of generations allows our civilisations to grow, to change, to evolve. Simply put, mortality, much as the individual might wail against it, is for the common good (Jonas, 1992, p. 39).

All of this is to say that humanism, and thus legal personhood, is necessarily bounded by mortality. To make the point explicitly: the paradigmatic legal person is not only adult, white, and male – they are also alive.

Three core tenets of private law personhood

With the above discussions in mind, we can identify three key features of private law personhood.

First, through the lens of private law personhood, ‘death’ is not simply a biological fact, but instead the legal response to that fact within a specific legal paradigm (this paradigm being the body of law that governs interpersonal relationships between private individuals). In this context, ‘death’ refers to the discontinuation of the autonomous individual on whose part private law recognises and enforces particular rights, duties, and obligations. For their part, the deceased is not merely the opposite of the autonomous individual that is the private law person; rather the deceased is the absence, the non-existence of this individual. In other words, death is the end of the legal person, and private law does not recognise the deceased – indeed, it is incapable of doing so.

Second, likely because of its origins in liberal political theory, personhood in modern private law is focused on the individual human subject. In this way, private law personhood is hyper-individualistic and atomistic. It focuses on us as individuals and our interactions with other individuals, assuming that we (as individuals) operate independently and in a self-interested manner (Arstein-Kerslake et al., 2021, p. 532). It is also hyper-focused on liberal ideas of individual autonomy. As Arstein-Kerslake points out, personhood is policed by our capacity to make rational decisions. Those who lack the capacity to make these decisions independently – such as the cognitively impaired – lack the necessary autonomy to be considered full legal persons (see Arstein-Kerslake, 2017, ch. 5).

Third, and on a more foundational level, as private law governs our interactions with others (that is, other legal persons), it is well-placed to balance the competing claims of relevant individuals vis-a-vis other individuals. Private law is not designed, nor, perhaps, is it capable, of balancing the rights, duties, needs, and interests of the individual vis-a-vis the community.

The central argument of this article, set out in the next part, is that the possibility of human cryogenic preservation challenges each of these three core tenets of private law personhood on a fundamental level.

Cryopreservation and three fundamental challenges to private law personhood

What is cryopreservation?

Human beings have long fought against the non-existence that is death. Death denial is ingrained in our human psyche, and throughout the history of our species this denial has driven us to advance our science, our medicine, and our warfare techniques so as to delay the inevitable for as long as possible.⁷ In the 21st century, however, emerging death technologies such as cryopreservation – the process by which the body (or merely the brain) of a recently ‘deceased’ person is cryogenically frozen in preparation for reanimation at some (as of yet) unknown point in the future – have shifted the focus of our death denial from delaying death, to, at least potentially, defeating it.

To be clear, however, as the matter currently stands, in order to be cryopreserved an individual must be legally dead. Once this initial legal declaration has been made, artificial intervention keeps the heart and lungs functioning as the body is cooled and injected with anti-coagulants. The body is then transported to a cryonics facility, where, in a process called ‘vitrification’, the blood is pumped out of the body and replaced with a chemical protectant designed to partly replace the water in the body’s cells with a chemical mixture that prevents the formation of ice (not unlike the antifreeze found in car engines). The ‘patient’ (or merely their head in the case of ‘neuropatients’) is then placed in something akin to a sleeping bag and sealed in a dewar – a large vat of liquid nitrogen – and maintained (or ‘suspended’) at a temperature of −196° Celsius until the time for reanimation comes (Cohen, 2020, p. 586).⁸

Challenge 1: death as the end of the legal person

These post-legal death preserved ‘patients’ present problems for private law. They are not absent or non-existent; indeed, in their massive stainless-steel vessels, they have an awesome presence. It is this ongoing presence that separates the cryopreserved from what we might call the ‘definitely dead’ – those whose bodies we bury, cremate, or otherwise dispose of in a permanent way.

The definitely dead capture our imagination – until very recently that dead person was alive, and we can remember them acutely. They continue to have a (metaphysical) presence. We know (or think we know) what they would have wanted, how they would have acted, what they would have said. But this will in time fade. We expect the dead to disappear. This might be a long and tumultuous process, as any study of the nature of grief will tell you, but it will happen nonetheless. When we refer to the ‘definitely dead’, then, we refer to the various stages of a person becoming nothing in this world (Laqueur, 2022).

Cryonic bodies are different. They may be (legally) dead, but they are certainly not going away. As noted above, they continue to maintain an awe-inspiring (and definitely physical) presence. There is no sense in speaking of the cryopreserved as ‘becoming nothing’. In this regard, the cryopreserved are manifestly and inherently different to the definitely dead.

Of course, there are liminal cases. Where a cryonic patient is different to a buried or cremated body in obvious ways, for example, the distinctions are harder to draw between the cryonically preserved and the mummies of ancient Egypt or South America, or the embalmed bodies of Lenin and Ho Chi Minh – at least if the focus is solely on ongoing physical presence. Here, we must point to an additional distinguishing factor: the potential for reanimation, however remote, and the corresponding intention behind the creation of the cryonic patient. The Egyptian mummies exist as a result of a very particular disposal process, including, for example, the removal of vital organs such as the heart and brain – in other words, they exist because, as individuals, they are acknowledged to be dead. The same is true of Lenin and Ho Chi Minh. Whilst each retains an ongoing physical and social presence, this presence is as a member of the class of ‘definitely dead’. The same is simply not true of the cryonically preserved, who remain ambiguous symbols of life.

Perhaps as a result of this ambiguity, the cryonically preserved are readily recognisable as holding something akin to the interests, rights, and obligations that private law has always denied the definitely dead. It is easy to imagine (and indeed the Californian case referred to in the Introduction of this article provides a concrete example of) the potentially irreversible harm that the cryopreserved individual will suffer if the power supply to the dewar in which they are stored is cut and the liquid nitrogen that preserves their body is allowed to warm, for example. If left unremedied, this warming will lead to decomposition and thus prevent any chance of reanimation in the future. Such decomposition represents not only the loss of a potential reanimated life, but the second, final, death of the presently preserved individual.

In much the same vein, it is natural to think that, should one cryonics facility leave the business, the patients stored at that facility have some right to be transferred to another facility so that their ‘suspension’ can continue uninterrupted. After all, cryonics facilities require the payment of a lump sum upon ‘suspension’ – Alcor (located in Scotsdale, Arizona), for example, charges $200,000USD for the cryopreservation of a whole body. This sum, which Alcor places in an investment fund managed by Morgan Stanley, is designed to fund the patient’s upkeep throughout their period of deamination, as well as providing them with some financial resources upon their eventual reanimation (Wilson, 2021). This means, in effect, that the cryonically preserved have paid for a service that they have a right to continue to receive.

(Not all cryonics facilities require the same financial preparedness in its patients as Alcor. In 1981, Trans Time, another American cryonics company, reported that they intended to ‘remove [two] patients from suspension … unless payment of past storage bills owed, and some assurance of future storage bills being paid, was forthcoming’ (Quaife, 1982, pp. 6–7).

Provided all is paid up, however, supporters of cryonics say this continued provision of service is only right. After all, the cryopreserved individual is not ‘dead’, but simply someone who is willing to wait a long time for resuscitation. In this way, then, the process of cryopreservation allows the dead to refuse to die.

But this refusal to die presents significant challenges to our understanding of private law personhood. It will be recalled that the cryopreserved are legally dead, and thus not capable of holding rights, duties, and interests recognisable (and enforceable) at law. (In fact, a cryonics facility in Australia was reportedly required to register as a cemetery in order to legally retain the legally dead bodies of its patients) (Chisholm & Fitzgerald, 2023). And yet the social recognition of the rights, interests, and duties of the cryopreserved is fundamentally at odds with this deeply ingrained position. In this way, cryopreserved individuals bend our understanding of legal personhood, perhaps to the point of breaking.

Here, the simple retort may be that private law should remove the ‘mortality limitation’ inherent within its understanding of legal personhood – to argue that in a world of increasing cryopreservation, to be human means something more than to die, and that private law’s understanding of personhood should develop in response to this societal change. And this might indeed happen at some future point – certainly, one suspects, after the reanimation of suspended patients becomes reliable and effective. After all, the law is no stranger to technological progress and the societal change this progress brings with it, and the corresponding need for legal development that frequently arises. It has long been acknowledged, for example, that the development of rail travel revolutionised the law of tort (see, e.g. Gifford, 2018).

But one cannot overlook the dominant narrative within our legal system whereby technology is seen as outpacing law ‘in a blinding rush of progress’ that leaves legal systems fatally at the mercy of technology (Fairfield, 2021, pp. 4–5). What will happen in the meantime, then, as we as a species wait to truly free ourselves from the constraints of our biology at the same time as we wait for law to truly catch up with the technology of cryopreservation? In this interstices period, which is likely to persist for some time yet, private law personhood will remain in a problematic state of flux.

And, importantly, if the law were to make this change, it would in essence be acknowledging that private law personhood can last forever: in short, removing the mortality limitation invites perpetual personhood.⁹ As discussed below, for much of this perpetuity – to be precise, the entire period of time following their suspension and prior to their reanimation – the cryopreserved will demand much from the (definitely) living (in terms of emotion, energy, money, and more) and give very little in return. Private law has long objected to this post-mortem assertion of control by the (legally) dead. For centuries, for example, it has taken action to limit so-called ‘dead hand control’ over property left behind by the deceased (via the rule (or rules) against perpetuities, to name but one mechanism), believing that this control fundamentally inhibits the liberty of the living by prioritising the wishes of the dead. In the case of the potentially perpetually cryogenically preserved, the control exerted by the legally dead is not merely over the property they have left behind, but over the very lives of those who come after them – those who are forced to labour, either literally or figuratively, in the interests of the frozen. This is a dangerous game.

Challenge 2: the private law person as an autonomous individual

This discussion of the potential rights, interests, and duties of the cryopreserved points to a broader issue: to put it simply, cryonics relies on the promise of hospitality. By this I mean that, whilst we might accept that the individuals preserved in liquid nitrogen will suffer harm if the power to the facility in which they are suspended is shut off, for example, if that harm is to be prevented from occurring the cryopreserved are necessarily reliant on the care of others. The cryopreserved cannot act for themselves, after all – they are in a state of suspended animation and, as a direct result, lack the capacity to do so. To protect the cryonic patient from the intervention of any number of contingencies (such as the money for maintenance fees running out, or an overcrowding problem arising in their dewar, or the facility in question simply deciding not to reanimate the patient when the appropriate time comes), others must necessarily assist (Doyle, 1997, p. 586).

This state of affairs will require private law to reconsider its individualistic and atomistic notion of personhood. After all (and assuming private law does in fact take the step of acknowledging the cryopreserved as being capable of holding legal rights and of suffering legally recognised harm), it cannot both acknowledge the cryopreserved as capable of suffering harm and deny them the ability at law to prevent or remedy that harm. The private law maxim ubi jus ibi remedium (no wrong to be suffered without a remedy) must count for something. This means, as a matter of necessity, that others will need to ‘step into the breach’ as representatives of the cryopreserved, and, also as a matter of necessity, that private law will need to recognise this representation.

Of course, in this regard the cryopreserved are not unique. Parents routinely represent the rights and interests of their minor children in private law claims in the same way that adults who lack full capacity are appointed a guardian to protect their interests and make decisions (including, for example, about the commencement of private law litigation) on their behalf. And yet the cryogenically preserved continue to present problems in a way that children and others who lack capacity do not – in particular, with regard to determining just who in fact will represent their interests at any given point.

An appropriate starting point for an analysis of this issue appears to be an alternative theory of personhood not grounded in the liberal political theory of centuries past called ‘relational personhood’. Relational personhood emphasises the truth in the saying ‘no person is an island’. Advocates of this approach to personhood stress the interrelatedness of all human beings and the (inter)dependence of our decision making on others. Importantly, this approach also emphasises that the highly social nature of our society means that all human beings rely on some form of assistance when interacting with others as a legal person (Arstein-Kerslake et al., 2021, pp. 533, 539–40, 546–7).

So far, this appears to be a sound theoretical approach to bring to considerations of the legal personhood of the cryopreserved given their less-than-full capacity status. A key element of this relational theory of personhood, however, is the idea of ‘relational closeness’ between private individuals. Relational closeness is a measure of the intimacy of the (preferably physical and mutually beneficial) relationship that exists between any two (or more) people, with the argument being that the realisation of an individual’s legal personhood (reliant as it is on one’s interdependence with others) is strongly tied to closer, more intimate relationships (Arstein-Kerslake et al., 2021, pp. 541–4). Such relational closeness simply may not exist in the case of the cryogenically preserved.

Let me explain. At first glance, it might appear easy enough to draw analogies between the cryopreserved and other general categories of individuals who rely on others to represent their interests (such as the children represented by their parents and the disabled adults represented by an appointed guardian). It is suggested, however, that there is one crucial difference between the cryogenically preserved on the one hand, and children and others who lack full capacity on the other. This difference is one of time: the cryopreserved remain reliant on others far beyond when those who might traditionally be thought to be responsible for providing this care by virtue of ties of family or friendship have themselves died (or been placed in cryonic suspension).

Of course, one might point out that many people today have guardians appointed to act on their behalf, those guardians having no close emotional tie to the individual whose interests they protect. In the Australian state of Queensland, for example, the Office of the Public Guardian is an independent statutory body charged with protecting the rights and interests of particular individuals. The decision to appoint the Public Guardian to this office in any given case is made by an order of the Queensland Civil and Administrative Tribunal. Similar schemes exist throughout the common law world. And regardless of jurisdiction, it is all in all a highly bureaucratic, sanitised, and impersonal process.

From the people whose rights and interests the Public Guardian is appointed to protect, the argument can be made, the cryopreserved are almost no different. But here again we must emphasise the temporal scale of cryopreservation. In the case of guardianship orders, both the individual whose interests are being protected and the guardian doing the protecting exist within the same societal context. The same cannot always be true of the cryopreserved. With medical science no closer to finding a means of successfully reanimating James Bedford in 2023 than it was when he became the first person to have his entire body cryopreserved in 1967, there is every chance that he and everyone who has followed in his cryonic footsteps will be suspended for decades, if not centuries, to come. If Bedford were to still be in cryonic suspension in 2567, 600 years after he was initially cryogenically preserved, for example, there is every likelihood that this future society will be so radically different to Bedford’s own that the individuals he is relying on to protect his interests will be cut from an entirely different cultural cloth to that of James Bedford himself. Indeed, this societal and cultural rupture has the potential to be so complete that the post-cryopreserved may in some ways be considered refugees in the world in which they awaken (Gibson, 2022).

Clearly, then, there is no guarantee that at any given point in time a particular cryopreserved individual will have any intimate relationships with the still-living around them that are at the core of the relational theory of personhood. And on a more practical level, relational closeness relies heavily on communication for its development (Arstein-Kerslake et al., 2021, p. 542) – an ability that, absent almost impossibly detailed advanced directions, is denied to the cryopreserved.

Challenge 3: balancing private right and public good

Beyond the relational requirements that must exist if cryopreserved patients are to successfully survive their suspension, there are other problems. Simply put, in an era of ongoing natural resource depletion, extreme climate change, and mass extinction events, cryonic corpses are going to become increasingly burdensome. Assuming even a slow rate of cryonics uptake, more and more resources – both in terms of human labour and environmental resources – will be required to attend to the ever-growing number of cryopreserved bodies. There may simply come a time when this is too much for an over-populated and ailing Earth, at which point the needs and interests of the cryopreserved will have to be balanced against the needs and interests of the planet and its (definitely living) inhabitants (Huxtable, 2018, pp. 494–5). The cryopreserved take, but they do not give back. At some point, and without a realistic prospect of mass reanimation on the horizon anytime soon, our society and our law will have to reckon with the reality of how much is too much for the cryopreserved, the half-living, the almost-dead, to ask of the definitely living.

This presents problems for private law personhood. As we have seen, and as private law is accustomed to doing, the existence of cryopreservation requires private law to balance the needs, interests, rights, and obligations of living individuals against those of cryopreserved individuals. Consider, for example, the weighing up at work in the case of a bankrupt cryonics facility owed money by its patients on the one hand, and those same cryopreserved patients who will suffer harm if the power to their dewar is cut on the other. However, and as private law is very much not accustomed to doing, the existence of cryopreservation will also require private law to balance the needs, interests, rights, and obligations of the cryopreserved against those of society at large. Thus, a court may be called upon to decide a dispute brought by environmental groups seeking to shut down a cryonics facility on the basis that the facility’s resource consumption is negligently contributing to environmental degradation.¹⁰ How are the rights of the individuals suspended at the facility in question to receive a service they have paid for, and their interest in waking up in some future world, to be weighed against the need of a definitely living society to continue to survive and thrive on a viable planet?

This is not to say that private law cannot rise to the challenge. As Varuhas (2021) notes, we can already see the overarching goal of several, specific private law doctrines increasingly being recalibrated away from the protection of individual rights and interests and towards the protection of the interests of the public as a collectivity. But the point remains that this recalibration away from private right and towards public good is a significant one, and one that requires a fundamental reorganising of the basic ordering principles that underly the common law. And cryopreservation and the existence of cryopreserved individuals will require more than a recalibration of a small handful of private law doctrines, but rather a complete overhaul of much of the ‘private’ hemisphere of common law legal systems.

Conclusion

Cryopreservation is a hot topic. It has been the subject of consistent scientific and philosophical debate since it first crossed the boundary from science fiction to reality in the 1960s. Nonetheless, whilst the potential (and actual) ethical and moral pitfalls of cryonic preservation have been noted many times by others, this article is the first to explicitly link these issues with the concept of private law personhood.

In doing so, this article has introduced the concept of personhood in private law to the field of death studies, identifying the concept’s three central tenets: private law personhood ends at the death of the natural person; private law personhood protects the rights and compels the performance of duties of private, atomistic individuals; and, more broadly, private law does not have the tools to balance the interests of the individual against the interests of society.

This article has shown that the cryopreservation of individuals after their legal ‘death’ presents fundamental challenges to each of these three core tenets. Because we can readily recognise the legally dead cryopreserved patient as being capable of suffering harm and otherwise as having rights and interests, private law’s insistence on legal death as the end of the private law person cannot remain unchallenged forever. And because the cryopreserved must rely on other, living people to prevent this harm being done to them and otherwise to enforce their rights and interests, cryopreservation challenges the liberal conception of private law personhood as inherently self-interested and individualistic. Finally, and on a more foundational level, the social, cultural, and environmental realities of cryopreservation will eventually require private law to weigh the interests of cryopreserved individuals against those of (living) society at large – a role it has not historically fulfiled and a task it is not necessarily equipped to do.

Against this backdrop, then, and whilst acknowledging that this article has intentionally not taken up the task of offering solutions to these challenges, it is not hyperbolic to suggest that cryopreservation represents the death of private law personhood as we know it.

Acknowledgments

My thanks to the anonymous reviewers for their insightful comments, and to Edward Spinks for his excellent research assistance.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Kate Falconer

Kate Falconer is a Lecturer at the TC Beirne School of Law at the University of Queensland. Her research interests lie in the law of the dead and bodily disposal, and the ways in which the private law interacts with death, the dead, and dead bodies. She is particularly interested in the impacts and implications of new death technologies both for private law and society more broadly.

Notes

1. Southern Cryonics, the first cryonics facility to be built in the Southern Hemisphere, for example, estimates that its maximum storage capacity of 600 ‘patients’ will be reached within 100 years of the facility opening (Southern Cryonics, n.d.). The facility opened in February 2023.

2. A brief note on terminology: this article uses the terms ‘cryonics’, ‘cryogenics’, ‘cryopreservation’, along with related and similar forms, interchangeably.

3. In this way, this article is concerned with the challenges cryopreservation poses to a core theoretical concept underpinning private law, rather than the broader moral or ethical issues raised by cryopreservation more generally.

4. In the Australian state of Queensland, for example, a parent or person in loco parentis can use ‘such force as is reasonable under the circumstances’ to correct, discipline, manage, or control their child: Criminal Code Act 1899 (Qld) s 280.

5. Although again there are jurisdictional variations. A number of US states, for example, have no minimum age for marriage provided there is parental or judicial consent (Tahirih Justice Center, 2017).

6. Some jurisdictions (such as the US state of California) allow certain adults to ‘donate’ their reproductive material in exchange for money, for example – although any compensation paid is often said to reflect the time, effort, and inconvenience experienced by the donor, rather than financial consideration for the physical material itself.

7. A history of the death denial thesis is set out in Martin & Tradii (2017).

8. In practice, artificial intervention may in fact not be used throughout the body cooling process, with the only mechanism available to inhibit brain degradation being the transportation of the cooled body to the relevant cryonics facility as quickly as possible. I thank an anonymous reviewer for pointing this out.

9. I am grateful to an anonymous reviewer for making this point.

10. To be clear, such a claim would almost certainly fail if brought today, although the continuing development of so-called ‘environmental torts’ suggests that this might not always be the case.