The Volokh Conspiracy
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Can you legally consent to a head transplant?
Transplanting a human head onto a different body sounds like the plot of a science fiction story. But a surgeon in China named Xiaoping Ren is trying to make head transplants a reality. He even has a volunteer, Valery Spiridonov, who has consented to the operation.
A few weeks ago, the Atlantic ran a story about this proposed human head transplant (or is it a body transplant?). And I just wrapped up a live conversation on AirTalk on 89.3 KPCC about the ethical implications of the same. In that brief conversation, I argued that there are significant scientific and ethical hurdles to overcome before such an attempt should take place. We have little insight, for example, into emergent properties of the brain such as human consciousness, and there have been only a few (and mostly fringe) studies on animals with severed spinal cords.
But setting aside for a moment what may be insurmountable scientific and ethical boundaries, what about the legal issues at stake? Can Spiridonov legally consent to the decapitation necessary to undergo the surgery?
A head transplant requires two decapitations and then a grafting of the patient's (in this case, Spiridonov's) head onto the body of another person (e.g. the donor, someone who is otherwise healthy but suffers brain death from an accident). After decapitation, the patient could retain consciousness for a few seconds such that the brain would be technically still alive. After that, what would most likely follow is irreversible death. So the surgeon would be decapitating an individual with near certainty that he would die, but hoping (and perhaps even believing) that the surgeon could successfully complete a head/body transplant to restore consciousness to the patient shortly thereafter.
Assuming that the patient does die, does it matter if he has consented to the surgery based on the chance that a successful head/body transplant could enable him to function in ways he has been unable to function for years? And assuming the risk that the surgery may fail and his death would follow? Or is the maxim that one cannot consent to murder the controlling law? Euthanasia and physician-assisted suicide are illegal in China under Articles 232 and 233 of the Criminal Law of the People's Republic of China. Article 232 of the Criminal Code in China stipulates a punishment of three to 10 years of fixed-term imprisonment for intentional homicide for relatively minor circumstances, and at least 10 years and up to the death penalty for more serious circumstances.
If we were to analyze this proposed head transplant under U.S. law, a few issues come to mind. First, although there has been some liberalization of physician-assisted suicide (otherwise known as physician-aided dying) laws in the United States, active euthanasia is illegal. And although the surgeon here would say that he is not attempting to end the patient's life, it seems as if active euthanasia could be the most lenient characterization of a surgery involving decapitation. Yet, the physician does not intend for the patient to die. Instead, the physician intends for the patient to be restored to walking with a new body and an intact brain. So although the physician intends his conduct, he does not intend to bring about death, even though it is probable. So the surgeon's conduct could be viewed as intentional or reckless homicide if the patient dies. And a patient cannot consent to intentional or reckless homicide.
What if the surgery is in some sense successful and the patient survives? The definition of death in the United States is "irreversible cessation of circulatory and respiratory functions or of all functions of the entire brain, including the brain stem." So if the cessation of the brain function is temporary, if at all, and reversed through the transplant, has the surgeon still attempted homicide or euthanasia?
Alternately, is the right way to analyze a proposed head transplant as an assumable risk in surgery? We permit surgeons to operate on patients every day, even though they may die, and many do. Is this head transplant surgery just a very risky surgery to which a patient can (or should be able) to legally consent?