36 Pages Posted: 28 Apr 2016

Date Written: 2010

Abstract

Over 20,500 people in the United States are diagnosed with primary malignant brain tumors each year. Most are terminal. Scientists believe that recent advancements in cancer research show promise that a cure will be found this decade. Unfortunately, that is not soon enough for patients recently diagnosed and given only months to live. If only there was a way to suspend their life and wait for a cure. There may be — with a procedure known as pre-mortem cryopreservation.

Pre-mortem cryopreservation is the act of a terminally ill patient ending his or her own life prematurely and entering a state of suspended animation — clinical, but not absolute death. The patient is then revived some time later when a cure for their illness has been attained. However, because the procedure requires a physician’s assistance in achieving preservation pre-mortem, most jurisdictions would equate the procedure to assisted suicide, and prohibit its use. This Article provides a detailed history of the science behind pre-mortem cryopreservation, and explains why courts should allow terminally ill patients to undergo the procedure, regardless of the respective state’s position on assisted suicide.

Jurisdictions that prohibit assisted suicide have done so after finding that the interests of the state in preserving life and preventing suicide outweigh the interests of the individual seeking death. The Article describes why this conclusion is improper in the case of pre-mortem cryopreservation, where the terminally ill patient is seeking life, not death. Thus, the state’s interests in preserving life and preventing suicide would not be offended.

Cryopreservation is already used in fertility procedures, in organ transplants, and during complex brain surgeries. As technology advances, so too will the demand for procedures utilizing pre-mortem cryopreservation. It is inevitable that terminally ill brain cancer patients will seek court approval to undergo the procedure. The Article concludes with a discussion on how jurisdictions could recognize a limited exception to the rule prohibiting assisted suicide in cases involving terminally ill brain cancer patients seeking to procure his or her only chance of future life.