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Bharati Law Review, Jan-Mar, 2017 12

Life beyond Life? Legal Implications of Cryonic


Preservation
Mr. Chirag Balyan 
Prof. (Dr.) LK Deb 

Introduction
In a recent case, Re JS (Disposal of Body), United Kingdom High
Court of Justice, Family Division rendered a path breaking
judgment by allowing a 14-year-old minor girl, suffering from
cancer, to be cryogenically preserved, as per her wish, after
death.1 The judgment opened up plethora of questions pertaining
to cryonics which range from issue of burial, rights of the dead,
rights after revival of dead and the legal consequences thereof. In
this paper an attempt has been made to understand the meaning
of cryonics, status and disposal of dead body, definition of death
and legal dynamics of cryogenic preservation in India & other
jurisdictions.
Meaning of Cryonics
The recent advances in cryobiology claims that life is possible even
after ‘legal death’ of an individual and refutes the claim of
mortality of man. This particular branch of cryobiology is called
‘cryonics’. Cryonics does not involve the freezing of dead people.
Cryonics involves placing critically ill patients that cannot be
treated with contemporary medical technologies in a state of long-
term low temperature care to preserve the person until a time
when treatments might be available.2 This has led to replacement
of organic process of dying by the technological process. The dying
phase of life is prolonged until biological knowledge is available to
reverse and restore life in the preserved body.3 More interestingly,
cryonics moots the idea of a ‘freezer coffin’, wherein dead body
may be preserved with a hope that it may again be resuscitated.


Assistant Professor of Law, Maharashtra National Law University, Mumbai.

Head of Department, Maharashtra National Law University Mumbai.
1 JS v. M and F, High Court of Justice, Family Division, [2016 EWHC 2859
(Fam)], Judgment dated 10th November 2016
2 Aschwin de Wolf, Cryonics: Using Low Temperatures to Care for the Critically
Ill,(Jan. 29, 2017, 10:00 AM), http://www.evidencebasedcryonics.org/what-is-
cryonics/.
3 Daniel R. Spector, Legal Implications of Cryonics, 18 CLEV. MARSHALL L. R EV.
341 (1969).
Bharati Law Review, Jan-Mar, 2017 13

The term cryonics was first used in mid 1960’s by Karl Werner. In
1965 the first cryonic society was established in New York and in
1966 a Life Extension Society Conference was held in Washington
D.C. The impetus for this activity was the publication in 1964 of
Robert Ettinger’s book, The Prospect of Immortality which assumes
that, “If civilization endures, medical science should eventually be
able to repair almost any damage to the human body, including
freezing damage and senile debility or other causes of death.”4
Cryogenics is a science that deals with the production of very low
temperatures and their effect on the properties of matter.
Cryobiology deals with the effects of low temperatures on living
material generally. Finally, cryonics focuses on human living
material and how human bodies can be frozen and thus preserved
until a cure for the cause of death can be found.5
In cryonics, after death cryonic suspension is administered and
the body frozen and stored at either the temperature of liquid
nitrogen or liquid helium until medical and scientific advances
find a cure for such incurable illness that brought about death.
The cryonically suspended individual is then taken from his
container/coffin, thawed, revived, repaired and given new life.6
Since the first cryonic preservation in the 1960s, the process has
been performed on very few individuals, numbering in the low
hundreds. There are apparently two commercial organisations in
the United States and one in Russia. The costs are high, or very
high, depending on the level of research into the subject’s case
that is promised. The most basic arrangement (which has been
chosen here) simply involves the freezing of the body in
perpetuity.7
Cryonics in its attempt to replace the organic process with the
technological process disturbs the delicate balance of the triad of
life which each individual experiences – faith, health & justice.
The practitioners in these institutions: clergy, physicians and
lawyers must now reassess the rules of the game of life be they
religious, medical or legal.8 The fundamental question which
cryonics poses is whether, the ‘freedom of scientific enquiry’ can
be taken to as extreme step as making an attempts to resuscitate

4 ROBERT ETTINGER, THE PROSPECT OF IMMORTALITY 1 (1964)


5 Greene, The Cry of Cryonics: Freeze, Wait, Reanimate, THE NATIONAL OBSERVER,
Apr. 29, 1968,at 18, col.1
6 George P. Smith, Intimations of Immorality: Clones, Cyrons and the Law, 6 U.
NEW S. WALES L. J. 119, 126 (1983).
7 RE JS, supra note 1.
8 George P. Smith, The Ice person Cometh: Cyronics, Law and Medicine, 1 HEALTH
MATRIX 23-35 (1983)
Bharati Law Review, Jan-Mar, 2017 14

the dead. The answer to this question has to be grounded in law,


ethics, religion, morality and social good.
Law and Cryonics
Law as an instrument of justice needs to look at the health
arguments of the cryonics’ physician who views death as a disease
which is curable? The other questions raised are, how should law
respond to the questions relating to faith surrounding the
cryonics patient? Who am I? A block of ice. Who am I? A living,
comatose patient or a dormant, static body with the possibility of
reverter. Why am I? A new human being now endowed with
immortality through the triumph of life over death founded on
man’s current faith in the God called Technology.9
All of us get one life, wherein, law guarantees a dignified and
meaningful life.10 Questions of life and death have troubled the
Courts since long, because it is not just law which needs official
pronouncement from Courts but, ethics, autonomy, morality,
religion & nature also have to be looked, which a judge sitting in
black robes may not be competent do so.11 These questions can’t
be simply settled by black and white letters of the law. Life and
Death are natural and biological phenomenon, but law regulates
them from ‘coffee to coffin’. Life in coffin is a paradox which is
challenged by cryonics.
Article 21 of the Constitution of India while expressly
guaranteeing ‘right to life’, doesn’t within its ambit cover ‘right to
die’ as held by Supreme Court of India in case of Gian Kaur v.
State of Punjab.12 However, in the most recent judgment of the
apex court, this right has been partially accorded to ‘terminally ill
patient with no probability of recovering’13. Thus, in strict terms
there is no ‘right to die’ however, the law affords certain rights and
protection to dead. For example, in India there is a law to the
effect that, a criminal defamation complaint may lie for defaming a
dead person.14 Also, treating with indignity a dead body15 or
misappropriating a dead body16 is an offence under Indian Penal
Code, 1860. The common law principles also provide right to a

9 id.
10 The Constitution of India. Ar. 21. Article 21 guarantees right to life and
personal liberty. Supreme Court of India has interpreted right to life means
dignified life.
11 id.
12 (1996) 2 SCC 648
13 (2011) 4 SCC 454
14 Indian Penal Code, 1860, S. 499, Explanation 1.
15 Indian Penal Code, 1860, S. 297
16 Indian Penal Code, 1860, S. 404
Bharati Law Review, Jan-Mar, 2017 15

person to decide how his/her body ought to be disposed after the


death.
The developing area of cryonics raises several legal, moral and
philosophical issues;
First, what should happen to the body after a person has been
declared dead? Whether, it is legally permissible to use or dispose
the body as per wishes expressed by deceased (during his life or
by will) or family members. This further raises the question of
‘autonomy’ in deciding how one’s body should be treated after his
or her death. Should this autonomy vest in the individual, family
members or the State? The first issue essentially deals with ‘right
to be frozen’. This issue has been addressed by Re JS (Disposal of
Body) case. As the facts of the case unfurl it reveals that a 14-
year-old minor filed a petition to be cryogenically preserved. She
wrote,
“I have been asked to explain why I want this unusual thing done.
I’m only 14 years old and I don’t want to die, but I know I am
going to. I think being cryo‐preserved gives me a chance to be
cured and woken up, even in hundreds of years’ time. I don’t want
to be buried underground. I want to live and live longer and I
think that in the future they might find a cure for my cancer and
wake me up. I want to have this chance. This is my wish.”17
While the mother of the JS supported her wish, the father
opposed it on several grounds.
The Court in this case observed,
“Cryonic preservation, whether or not it is scientifically valid,
requires complex arrangements involving the participation of third
parties. The body must be prepared within a very short time of
death, ideally within minutes and at most within a few hours.
Arrangements then have to be made for it to be transported by a
registered funeral director to the premises in the United States
where it is to be stored. These bridging arrangements are offered
in the UK for payment by a voluntary non‐profit organisation of
cryonics enthusiasts, who are not medically trained. Evidently,
where the subject dies in hospital, the cooperation of the hospital
is necessary if the body is to be prepared by the volunteers. This
situation gives rise to serious legal and ethical issues for the
hospital trust, which has to act within the law and has duties to
its other patients and to its staff”.

17 RE JS, supra note 1, para 10.


Bharati Law Review, Jan-Mar, 2017 16

Finally, Mr. Justice Peter Jackson upon the facts and


circumstance of the case allowed the application of the girl.
Second, the issues arising due to vacuum in law addressing
cryonics are:
i. Whether, body which is cryogenically preserved can suffer
an injury?
ii. Whether, Cryonic institute may be held liable to pay
compensation for any negligence in mis-handling the dead
body?
iii. Whether, the product liability can arise of manufacturer on
account of defective freezer or other apparatus used for
cryonic preservation?
iv. What would happen to a person against whom the criminal
case stood abated by virtue of death and later that person
is revived cryogenically?
v. Should a cryogenically revived person be allowed to take
control over the estate which belonged to him but now has
passed to his heirs by virtue of succession or is passed on
to others by virtue of ‘will’?
vi. Section 108 of the Indian Evidence Act presumes a person
to be ‘statutory dead’ if such person is not heard of for
seven hears by those who would have naturally heard of.
Whether, the cases of re-appearance of such statutory dead
may be used as precedent to decide the cases of those who
are cryogenically revived?
vii. What happens in a case where law requires autopsy to be
performed on a body and the deceased wish was to be
cryogenically preserved. An autopsy typically renders the
body less suitable for preservation. Even in situations in
which a body is left in a state that is amenable to
preservation by freezing, the risk of an autopsy can
interfere with the intention of the deceased to be preserved
cryogenically.
Third, with the fact that the person has already been declared
legally dead, how would the law reinstate them to the original
position as far as issues of succession and marriage are
concerned. Further, can a body be freezed in perpetuity and what
is its status in the freezer during all those years?
Status and Rights of Dead
Jurisprudence treats body at par with ‘property’ and ‘goods’. The
legal treatment of a dead body is tied to property-evolution of the
legal system and mirrors development of right to property. Early
Bharati Law Review, Jan-Mar, 2017 17

English courts, based on their understanding of the concept of


property, went on to hold that, as the “corpse” was not “property”,
no “rights” accrued in a corpse.18 The US courts did not accept the
English law’s theological approach and tried to locate this “right”
in concepts such as “public welfare” and “decency”.19 A
Pennsylvania court held that the kin’s right to the dead-body had
the legally recognised attributes of ownership such as custody
and control. However, this right was only for the purpose of
disposing of the body. In India the Patna High Court in
Khushboo’s case (2007)20, while dealing with an accident claim
where a vehicle was carrying a corpse, held that a body could be
defined as “goods”. However, unlike other properties body is
perishable and therefore means of preserving this property after
human life is difficult.
The common law gives weightage to the wishes of a deceased and
its family members as far as mode and manner of disposal of body
is concerned. Therefore, law doesn’t seem to come in way of
preserving the body of deceased in the freezer unless, it affects the
community interest, impacts public health, outrage public
decency or creates public nuisance. The burden of proof would lie
on the person who alleges that establishment of freezer is
unlawful, improper or dangerous. In England, since the Norman
days, the church and later the Ecclesiastical Courts had the
rights over the “dead body”. This was primarily due to three
reasons, (a) to prevent sacrilege, (b) as burial grounds were
church-controlled and (c) the church exercised probate
jurisdiction (deciding over the estate of the deceased).
Since a person owns a right over the body, the necessary
concomitant of this is that a person must also have a right to
dispose body as other properties. However, this right exists during
life by the individual himself and after the life by his heirs. History
has seen number of instances people executing will deed telling
the executor of will the specific way of disposal of their body.
Classic example is of Jeremy Bentham, political and legal
philosopher, who in his will desired his head to be preserved.
With regard to the disposition of a body, Kay J. in Williams v.
Williams21, held that a dead body is not property and therefore

18 The jurist Blackstone believed that no one had rights over “bodies” or “ashes”.
19 In Re Widening of Beckman Street, one of the earliest American cases, the
court held that relatives had a right to bury a corpse.
20 Cited in Sanjay Ghose, Honoring the Dead, (December 20, 2016, 10:10 AM),
http://www.dnaindia.com/analysis/column-honouring-the-dead-2045485.
21 [1882] LR 20 ChD 659
Bharati Law Review, Jan-Mar, 2017 18

cannot be disposed of by ‘will’ and that directions given by a


deceased as to the disposal of his body were not enforceable as a
matter of law. However, the administrator or executor of the estate
has the right to possession of (but no property in) the body and
the duty to arrange for its “proper disposal” an undefined term
which has been subject to change over time.
Consequently, in English law there is no right to dictate the
treatment of one’s body after death, regardless of testamentary
capacity or religion. Disputes between executors or administrators
about the disposition of a body have been dealt with either in the
manner of the resolution of a dispute between trustees (see Fessi
and Hartshorne v. Gardner [2008] EWHC B3 (Ch)) or as an
application to displace the administrator of an estate, pursuant to
s.116 of the Supreme Court Act 1981 (see Burrows and Ibuna).22
The wishes of the deceased may be highly relevant, but are not
determinative and cannot bind third parties: The role of the court
is not to give directions for the disposal of the body but to resolve
disagreement about who may make the arrangements.23 In
another case where, the defendant buried his child in a wood in a
paper box, without religious ceremony, yet the court held that no
criminal action would lie.24 [O]nce it has been admitted that a
certain person has the right of burial, it seems that that person
can bury the corpse in any manner he sees fit, so long as it does
not outrage public decency or amount to a public nuisance.25
In Gian Kaur v. State of Punjab26 apex court in India held that,
“…The right to life including the right to live with human dignity
would mean the existence of such a right upto the end of natural
life. This also includes the right to a dignified life upto the point of
death including a dignified procedure of death…” In Paramand
Katara case27 the apex court held that the “right to dignity and
fair treatment under Article 21 of the Constitution of India is not
only available to a living man but also to his body after his death.”
In S. Sethu Raja’s v. The Chief Secretary,28 Justice V.
Ramasubramanian of Madras High Court held that,
“…by our tradition and culture, the same human dignity (if not
more), with which a living human being is expected to be treated,

22 Supra 1, para 51
23 Anstey v Mundle [2016] EWHC 1073 (Ch), [49].
24 Seaton v. Commonwealth, 149 Ky. 498, 149 S.W. 871 (1912).
25 Note and Comment, 23 Mich. L. Rev. 274, 275 (1924-25).
26 (1996) 2 SCC 648, para 24
27 1995 (3) SCC 248
28 W.P.(MD)No.3888 of 2007, judgment dated 28.08.2007)\
Bharati Law Review, Jan-Mar, 2017 19

should also be extended to a person who is dead. The right to


accord a decent burial or cremation to the dead body of a person,
should be taken to be part of the right to such human dignity. As
a matter of fact, the Supreme Court held in Ram Sharan
Autyanuprasi vs. Union of India (AIR 1989 Supreme Court 549)
that the right to life enshrined in Article 21 of the Constitution
would include all that gives meaning to a men life namely, his
tradition, culture, heritage and protection of that heritage in its
full measure.”
Buried in Freezer – Case for Cryonic Preservation
In many European Countries like France Burial, cremation and
lawful donation are the only means to dispose a dead body. The
law doesn’t recognise cryonics as a means to deal with dead. In
United Kingdom, the commercial cryonics facilities are not
available. In a case wherein, mother wanted her 14-year-old
daughter to be preserved after death and for that means wanted
her body be transported to United States, Court allowed the same
without pronouncing on the legality of cryonics as there is no
prohibition on transporting the remains of dead. However, the
Cremation, Interment and Funeral Services Act makes it illegal to
advertise about cryonics. (Section 14 states, “A person must not
offer for sale, or sell, an arrangement for the preservation or storage
of human remains that is based on (a) cryonics, (b) irradiation, or (c)
any other means of preservation or storage, by whatever name
called, and that is offered, or sold, on the expectation of the
resuscitation of human remains at a future time.”29
A New York Statute provides that a person who is eighteen years
of age or older has the right to direct the manner in which his
body shall be disposed of after his death. However, this right of
directing the disposition of one’s body after death is conditional:
(1) the instructions of the decedent regarding disposition must
meet certain formal requirements, and (2) the recipients of the
body must meet certain standards.30 To comply with the first
condition the Cryonics Society of New York has already drawn up
a body authorization form. To buttress this form it has prepared a
personal affidavit form to be completed by the proposed freezees
and a consent form to be completed by the next of kin.31

29 Mine Salkin, The Only Anti-Cryonics Law in North America,(Jan.29, 2017,10:00


AM), https://motherboard.vice.com/en_us/article/the-only-anti-cryonics-law-
in-north-america.
30 N.Y. Pub. Health Law § 4201 (1) (McKinney Supp. 1967)
31 Daniel R. Spector, Legal Implications of Cryonics, 18 CLEV .-MARSHALL L. R EV.
341 (1969).
Bharati Law Review, Jan-Mar, 2017 20

Compliance with the second condition is evidenced by the very


principles for which the cryonics societies stand. Certainly they
are proper donees.32 Another form in which the proposed freezee
manifests his intention to be cryonically suspended is the inter
vivos trust agreement. This is used primarily, however, to provide
for the payment of the initial and yearly maintenance costs of the
cryocapsule, and for the care of the freezee; in addition the freezee
is insured a strong financial position on revival.33 The reasons
why the trust is inter vivos are: (1) to transfer the required funds
from the freezee’s assets before his death, and (2) to settle at least
the bulk of the legal and administrative problems “before the
patient loses control.”34 Although cryonic suspension can
conveniently be fit into the present laws governing the disposition
of dead bodies, many people will make the argument that freezing
violates society’s notions of common decency
Post Cryonic Challenges in Defining ‘Death’
Presuming that there can be a life after death, we need to
understand the meaning of term ‘death’ and then need to redefine
it. Death though a medical problem has to be recognised legally. A
person is declared dead not by following dictionary meaning but,
by scientific criterions. Modern science has blurred the
boundaries of life and death to an extent where clinical death,
cellular death and brain death have been reversed with scientific
medical interventions. It is believed that, question of reversibility
depends upon the state of medical advances. The scientific
criterions of declaring a person dead can’t remain static.
There are basically three types of death; clinical, cellular and
biological. Clinical death precedes biological death and occurs
normally when one’s heart and respiratory systems stop. The
pupils simultaneously become fixed and dilated and tendon
reflexes cease. Cellular death is not complete until at least two
days after clinical death and refers to the irreversible degeneration
or disorganisation of individual body cells. However, from a
biological point of view death occurs gradually. Thus even after a
recognition of clinical death certain biological activities occur.35
Death is classically defined as the cessation of three
interdependent vital body functions - circulation, respiration and

32 Id at p. 352
33 Id at p. 353
34 Henderson and Ettinger, Cryonic Suspension and the Law, 15 U.C.L.A. L. R EV.
414, 416 (1968).
35 Albano, “The Medical Examiner’s Viewpoint” in A. Winter (ed.) The Moment of
Death: A Symposium19, 20(1969).
Bharati Law Review, Jan-Mar, 2017 21

brain activity.36 Cessation of breathing and loss of heartbeat are


still viewed by many as the crucial death signs and in case these
require artificial support then new criterion of determining death
should be looked at. When brain cease to function, brain death
has also been recognised.37
Three additional forms of death have been suggested38. The first is
apparent death which occurs when the outward appearances of
vital functions such as respiration, circulation and motor activity
have ceased. The second is relative death which is a term used to
describe the bodily state between the cessation of cardiac and
respiratory activity. Complete resuscitation is quite possible in the
early stages of relative death. Finally, there is absolute death or
the condition where the resuscitation of a body as a whole or even
where the resumption of physiological functions of either
individual organs or cells is impossible.39 While some
commentators have drawn attention to what they perceive as
sharp distinctions between the legal and the medical definitions of
biological death,40 the law generally treats the matter as a medical
question of fact determined by the “ordinary standards of medical
practice” in each community, and the laws and customs of each
state.
In India the Registration of Births and Deaths Act, 1969 defines
death to mean “the permanent disappearance of all evidence of life
at any time after live-birth has taken place”.41
The Transplantation of Human Organs and Tissues Act, 1994 was
passed in order “to provide for the regulation of removal, storage
and transplantation of human organs or tissues or both for
therapeutic purposes and for the prevention of commercial
dealings in human organs or tissues or both”42 The Act provides
for the definition of deceased person to mean “a person in whom
permanent disappearance of all evidence of life occurs, by reason
of brain-stem death or in a cardiopulmonary sense, at any time
after live birth has taken place”43. Further, “brain-stem death”

36 D. Hendin, Death as a fact of Life, 25 (1973)


37 See, J. KOREIN, BRAIN DEATH: INTERRELATED MEDICAL AND SOCIAL ISSUES (1979)
38 See, R. Ettinger, LASTING INDEFINITELY,64 (1965).
39 id
40 Task Force on Death and Dying of the Institute of Society, Ethics and Life
Sciences, Refinements in Criteria for the Determination of Death, 221 J.A.MA.
48, 51-52(1972).
41 The Registration of Births and Deaths Act, 1969, Section 2(b).
42 The Transplantation of Human Organs and Tissues Act, 1994 as amended by
Act 16 of 2011 w.e.f. 10.01.2014, Objects and Reasons.
43 The Transplantation of Human Organs and Tissues Act, 1994, Section 2(e).
Bharati Law Review, Jan-Mar, 2017 22

means the stage at which all functions of the brain-stem have


permanently and irreversibly ceased and is so certified under sub-
section (6) of section 3.
Justice Markandey Katju in case of Aruna Ramachandra
Shanbaug v. Union of India, referring to a technical glossary
accepted that ‘brain death’ is a state of prolonged irreversible
cessation of all brain activity, including lower brain stem function
with the complete absence of voluntary movements, responses to
stimuli, brain stem reflexes, and spontaneous respirations.
Explanation: This is the most severe form of brain damage. The
patient is unconscious, completely unresponsive, has no reflex
activity from centres in the brain, and has no breathing efforts on
his own. However, the heart is beating. This patient can only be
maintained alive by advanced life support (breathing machine or
ventilator, drugs to maintain blood pressure, etc). These patients
can be legally declared dead (‘brain dead’) to allow their organs to
be taken for donation.44
The liberal interpretation of Indian law on the definition of ‘death’
suggests that a body which is cryogenically preserved cannot be
deemed to be ‘death’. The hope in future cryobiology which
scientists see would mean that the evidences of life have not
permanently disappeared’ as there is a hope beyond hope that
such person may still be revived. Pertinently, the legal death of a
person occurs only when the persons’ death certificate has been
signed.
Bodies of Spiritual Preceptors in India
In India as of now there aren’t any instance of people expressing
their willing for ‘cryonic’ preservation. However, one things that is
common with other cryonics practicing jurisdictions is that we
also bury people in freezer with the hope that dead may come
alive someday. But, the rationale of such belief is not the trust on
medical science but the yogic science. The case of Balak
Brahmachari and of Ashutosh Maharaj are two cases where the
followers believed that ‘saint’ hasn’t died but only went into the
stage of transcendental meditation and therefore, followers
preserved the body in the ice freezer so that body is not
deteriorated. These case of Balak Brahmachari raised the concern
of health hazard as the followers started distributing the water of
melted ice to the devotees. Body of Balak Brahmachari was
preserved for 55 days until with police intervention body was
cremated.

44 (2011) 4 SCC 454, para 9


Bharati Law Review, Jan-Mar, 2017 23

The law doesn’t interfere with the wishes of the deceased, heirs of
deceased or the custodians regarding manner how body should be
disposed provided such disposal is not hazard to public decency
and health. This right was recently recognised by the Punjab and
Haryana High Court in the case of Ashutosh Maharaj wherein, the
division bench comprising of Justice Sk Mittal and Justice
Mahavir Singh Chauhan observed that, Divya Jyoti Jagriti
Sansthan of Nurmahal in Jalandhar has the right to the decide
the manner of disposal of body of Ashutosh Maharaj who is
otherwise declared clinically dead on 28 January 2014.
In this case, while the government contended that there are no
norms for disposal of bodies; court recognised that in disposal of
body religious practices has to follow and courts can’t arbitrate on
religious issues. The Court in reply to counsel’s contention that
body has been in freezed because baba is in state of Samadhi
observed, “We have never heard in history about any saint sitting
in samadhi for such a long time. But we have heard of followers of
such saints giving them respectable burial.”45
The case of Ashutosh Maharaj is still pending before the Punjab
and Haryana Court. Subsequent order of the High Court dated 1
December 2015, directed the ‘cremation’ of the body within 15
days. It has been pointed out by the High Court of the situation
wherein in every village in Punjab there is spiritual preceptor and
everyone’s followers want to preserve the dead body.46
In this case, there is a tussle going on between the dera followers
and the son regarding the right to perform the last rites,
succession of property and preservation of the body. This has
resulted into proliferation of associated legal issues. There is also
an argument that motive behind keeping baba spiritually alive is
to prevent the property form passing to government by doctrine of
escheat.47

45 Sukanya Sarkar, The Curious Case Of Ashutosh Ji Maharaj: Clinically Dead,


Yet In Deep Transcendental Meditation? (March 10, 2017, 10:00
AM),https://www.youthkiawaaz.com/2014/03/curious-case-ashutosh-ji-
maharaj-clinically-dead-yet-deep-transcendental-meditation/.
46 ‘Baba’ in freezer: What if someone else wants to be preserved, asks HC (March
10, 2017, 10:00 AM),
http://www.msn.com/en-
in/news/newsindia/%E2%80%98baba%E2%80%99-in-freezer-what-if-
someone-else-wants-to-be-preserved-asks-hc/ar-AAlW4Oo
47 Decide how Ashutosh Maharaj’s body should be disposed: Punjab and Haryana
High Court tells Nurmahal Sansthan. (March 10, 2017, 10:00 AM),
Bharati Law Review, Jan-Mar, 2017 24

One author has advocated a move from right based approach to


the duty based approach in dealing with dead bodies. It is
remarked, “…while Indian folktales are enriched by stories about
relatives chasing Lord Yama to get back loved ones, and our
sacred (and soon to be) national scripture likens the dead body to
discarded clothes, it is in respect of the law of the dead that the
rights-based western jurisprudence and the dharma or duty-
based Indian jurist-philosophy converge – the living have no rights
over the dead but only a duty—to give them a dignified send-off.”48
Conclusion
Cryonics gives a hope of life after death. It provides an interesting
interface between law and medical science. Though, issues of life
and death are beyond law, they are not out of reach from it. The
advancement in medical science will keep haunting law with the
complex problems of life and death. The judiciary has
acknowledged as discussed in the present paper that it is not
against the faith & belief of a life beyond life. The UK High Court
endorsed the desire of the young girl to be cryogenically preserved
to be brought back to life at an uncertain future date. Presuming
that, the body would again be alive several questions as raised in
the paper arise. Further, thepost cryonic- life of individual need to
be weighed against societal good because even beyond a
successful revival, the cryonaut will face serious problems
concerning social and economic adaptation in a society where
family and friends are dead and the indicia of economic wealth
have changed dramatically.49
As of now, Indian Law is silent on cryonics. It neither legalises it
nor makes it illegal. This is problematic because, certainty is one
sure thing we require whether there be cryonics or not. The law
should not work on the adhocism, but should keep pace with new
developments. Evidences show that people have chosen that their
bodies be preserved and in fact several bodies have been
preserved through the process of cryonics. The State intervention
is imperative because of the health, legal and ethical concerns
involved. Argument is that in the absence of specific law there
may be different hazards associated with the exercise of this right,
which through proper legislation may be avoided well in advance.

http://indianexpress.com/article/cities/chandigarh/decide-how-ashutosh-
maharajs-body-should-be-disposed-punjab-and-haryana-high-court-tells-
nurmahal-sansthan/.
48 Sanjay Ghose, Honoring the Dead, (December 10, 2017, 10:00 AM),
http://www.dnaindia.com/analysis/column-honouring-the-dead-2045485
49 George P. Smith, Supra Note 6 at p. 127.
Bharati Law Review, Jan-Mar, 2017 25

Where law ends or remains unchartered, discretion becomes the


norm for decision making. This doesn’t necessarily lead to
negative results. Custom, usage and equitable balancing tests
become paramount; and the situation ethic is more directive than
a structured a priori standard.50In individual situations, the
judges decide on the disposal of the body based on custom, usage
which are to be equitably balanced with the needs of the time. At
present in the field of cryonics only preservation part needs to be
immediately addressed and regarding the rights upon coming
back to life can be addressed at a later date.



50 George P. Smith, Supra Note 6.