Today’s blog was co-written with Demetre Vasilounis, Student at Law at Fasken LLP.

As science’s capability to bend the laws of nature becomes wider and wider, our laws will have to develop ways to tackle the challenges that will inevitably arise from such scientific advancement. One concept which is becoming increasingly more popular in this respect is the extension of human life, or, in other words, the concept of reanimation or immortality.

A few years ago, Brian Watson, a 73-year-old Alliston, Ontario resident made headlines when he instructed his family to cryogenically preserve his body upon his death. The family enlisted the assistance of the Cryonics Institute, a not-for-profit organization that cryogenically stores bodies at its facility in Michigan (as of July 2018, the facility is hosting over 170 patients). The idea behind cryonics is simple: upon its death, a body is frozen as soon as possible in order to preserve its biological tissue (particularly in the brain). The body remains frozen until scientists have found a way to reanimate the dead body.

While scientists have yet to discover how to reanimate any dead bodies, a cause for concern includes the legal implications of such reanimation. First of all, the legal definition of “death” does not seem to contemplate cryonics. The Ontario Superior Court of Justice most recently discussed this definition in McKitty v. Hayani, 2018 ONSC 4015, 295 A.C.W.S. (3d) 63. In McKitty, the family of a woman in a coma as a result of a drug dose challenged the decision of the woman’s doctors to take her off life support. The doctors’ decision stemmed from the fact that, according to medical guidelines, the woman was brain dead.

The court in McKitty pointed out that Ontario currently has no statutory definition of “death”, nor what the requirements are for recognizing that a human is dead. The court went on to find that in the common law, it is up to physicians to determine death by applying the relevant principles as set out in the Canadian Medical Association Journal Guidelines. The court summarized these principles with respect to brain death by declaring, in Paragraph 59, that “brain death is declared when it is found, through the use of clinical testing described above, that there is a lack of capacity for consciousness, brain stem reflexes, and capacity to breathe”. The court found that the woman was brain dead, and ordered her to be taken off of life support. While the family did appeal this decision, the woman completely died at the end of 2018 (note that she had not yet been taken off of life support), before the Ontario Court of Appeal issued a ruling. However, the Ontario Court of Appeal has indicated that it will rule on this case regardless.

The requirements for a finding of brain death seem general enough to apply to most situations which society conventionally understands to constitute complete death. In fact, they even seem applicable to Brian Watson, who had died of cardiac arrest. But, if science can somehow reanimate Watson’s currently-frozen body, effectively “bringing him back to life”, would such an event potentially change our understanding of what death is? More specifically, does the legal definition of death connote absolute permanence?

The legal definition of “death” and its associated estates law implications also become complicated when considering other forms of “death avoidance”. Consider Nectome, a start-up that aims to preserve people’s brains by uploading them to computers. Would such a process fail to satisfy the “lack of capacity for consciousness” requirement for brain death that the court in McKitty described? Oddly enough, Nectome has indicated that it will need to euthanize its patients before extracting their brains; this also could present possible challenges in determining when death actually occurs (if, in this instance, at all). Nectome’s business model also opens up the possibility of immortality, as a mind could theoretically be copied, backed up and preserved for as long as computer systems exist (and computer systems, as a whole, are on track to exist for a longer period of time than any human in history).

In any event, there is no question that our laws may need to adapt to the scientific possibilities of reanimation or immortality. While some may dismiss cryonics and mind uploading as pipe dreams that will never produce their desired results, courts and legislators should still consider the prospect that society’s concept of “death” may change as a result of advances in technology.