Chilling Effect

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Some people want to be buried when they go. Others prefer cremation. Still others choose to be frozen, in the hope that medical science will one day be able to revive them and repair their bodies.

Unlike the more conventional alternatives, that choice receives only limited protection under the law. Last fall, proponents of the right to be frozen, or "cryonically suspended," suffered a setback and then won a victory in California's courts.

In September, Superior Court Judge Ronald C. Stevens refused to enjoin state Attorney General John Van de Kamp and Santa Barbara County District Attorney Thomas Sneddon from prosecuting members of the Riverside-based Alcor Life Extension Foundation for suspending a Sunnyvale mathematician with a terminal brain tumor. Thomas Donaldson wants, to have his head removed and preserved with liquid nitrogen before cancer destroys his brain.

Both California's courts and the U.S. Supreme Court, most recently in Cruzan v. Missouri, have recognized the right of a terminally ill patient to have his or her feeding tube disconnected. Donaldson's attorneys argued that there is no logical distinction between such suicide by starvation and the assisted death of a person who undergoes cryonic suspension while still alive.

"There is ample authority for the right of a person who is terminally ill to put an end to his suffering and have the assistance of others in doing so," attorney David Epstein wrote. "The only material distinction between lawful assistance and murder is plaintiff's consent."

But Stevens declined to draw this conclusion, which he said involved "a giant step" from existing case law. He said the cryonics movement would have to seek a legislative exemption rather than judicial protection. Donaldson plans to appeal.

Although the courts have not recognized a constitutional right to be suspended while alive which members of the movement believe increases the chances for revival—a decision in October reinforced the right to have one's body frozen after death. Superior Court Judge Arelio Munoz ruled that the state Department of Health Services may not withhold death certificates and body-disposition permits from organizations such as Alcor. Munoz said people have a right to dispose of their remains however they choose. So the courts (in California, at least) are sending a simple message to people who seek the right to do what they want with their own bodies: Drop dead.

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