Alix Rogers

Drs. Xiaoping Ren and Sergio Canavero claim to be preparing to perform the world’s first head transplant.  They have secured a location in China, and say that the surgery will be performed on a Chinese national(s).  The prospect of the procedure has garnered significant media interest and was recently the subject of an AJOB Neuroscience issue.[1]  As numerous commentators, including Judy Illes and Paul Wolpe,[2] have noted, the procedure is technically and ethically troubling – to say the least. The bioethics literature has largely focused (correctly so) on the legal questions of permissibility and informed consent:  Can the procedure be considered ethically permissible and can a prospective body donor or body recipient give substantive informed consent? The legal ramifications and quandaries that will be raised in the (very unlikely) event of a successful head transplant have been mentioned only in passing. This blog post examines the legal status of the remaining living person(s?).

The very term head transplant is a confusing misnomer.  As others have noted, body transplant is arguably a better term for the intended procedure.[3]  The head of person A is removed from their (presumably terminally ill) body, and attached to the body of (presumably brain dead) person B.  Both the body of A and the head of B are discarded, and the head of A and the body of B remain connected as a living entity.  Many of us intuit that the person remaining is person A. This is, for example, how the news media has described the procedure.[4]  Yet, the answer to that question is thorny and uncertain. From an experiential or sense of self perspective, a new person arguably now exists.  Legally speaking the answer is technically unknown, because it has never before been raised before a court or by a legislature, but I believe that the government should recognize the continuation of person A in the event of a successful transplantation.

In American law the designation of legal personhood for natural persons is neuro-centric.  One of the clearest examples of this is conjoined twins.  The law conceives of conjoined twins as distinct legal persons regardless of whether separation occurs.  Most notably, the twins Abby and Brittany Hensel, who essentially have two heads and one body, were issued with two passports (and presumably two birth certificates) by the United States government.[5] My neuro-centric focus rests in part upon the unproven assumption that if the procedure works, person A will awaken with their memories intact and not, like Frankenstein’s monster, a blank slate.  Yet, even if person A has no memory of being person A, or behaves completely differently from person A before the surgery, or has no ability to make new memories, I think that we should maintain the legal existence of person A.  The parallel with amnesia, traumatic brain injury,[6] and Alzheimer’s patients supports this assertion.  We may say in a social sense that some of these patients become completely different people, but legally they are still the same person.

One challenging problem may be declaring the death of person B and the continued life of person A.   Under the Uniform Anatomical Gift Act (UAGA), “[a]n individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”[7]  In the case of a head transplant, the original body of person B maintains circulatory and respiratory functions, and (we assume) the brain of person A maintains all of its functions.  By leveraging the term individual, we can arrive at the correct conclusion that person B is dead, and person A is alive.  Person B is presumably brain dead and is therefore dead under the neurological criteria of the Act.  At the moment of transplantation, person A will loose circulatory and respiratory functions.  This is hopefully only a temporary, not irreversible situation.  Once the donor body is attached, the individual, namely person A, will regain circulatory and respiratory functions.  The parallel here is heart/lung transplant recipients.  We do not declare them dead under the UAGA, even though the heart and lungs that they were born with are no longer functioning.

Ultimately, maintaining the legal existence of person A, and recognizing the death of person B is desirable in large part due to simplicity.  Our legal system would be needlessly over complicated by the existence of half-persons or new (grafted not born) persons.  It will also simplify concerns that that we might have about citizenship, identity, assets, liabilities and responsibilities.  We do not want a world where head transplantation becomes a way to avoid child support! In some future monitored world, we might consider reporting requirements.  In a DNA based identification world, person A might need to update their DNA profile (but we are a long way from that!).  This question is not unique to head transplantation.  Recipients of blood or other tissue or organ donations will have cells that contain the DNA of the donor and their blood serum will contain cell free DNA from such cells.

What may be the most complicated legal question with head transplantation is reproduction.  So complicated in fact that it deserves its own blog post!

One final recognized complexity with legal status of a head transplantee is that the operation will occur in China with Chinese nationals.  Western bioethical norms and American law do not govern.  Yet, thinking through the implications in the American context proves useful for several reasons.  First, if the procedure is a success, it will eventually spread to the United States.  Thus, face transplants, though still uncommon, have spread internationally since they were first accomplished.  Second, the procedure is legally relevant to the development of other similar far-fetched future technologies, such as ‘uploading” a human brain onto a computer.  Finally, and most importantly, the example of head transplants brings to our attention areas where current laws are unclear and contradictory.  This is relevant to the more science fiction question of head transplants, but also to contemporary questions that we are currently grappling with, like posthumous reproduction.  Thinking about the legal implications of head transplants might help us get our (legal) heads screwed on straight in other areas.

Alix Rogers, CLB/SPINS fellow

[1] AJOB Neuroscience, 8(4) 2017.

[2] Paul Wolpe, Ahead of Our Time: Why Head Transplantation is Ethically Unsupportable, AJOB Neuroscience, 8(4) 206-210, 2017; Judy Illes & Patrick J. McDonald, Head Transplants: Ghoulish Takes on New Definition, AJOB Neuroscience, 8(4) 211-212, 2017.

[3] Sam Kean, The Audacious Plan to Save This Man’s Life by Transplanting His Dead, The Atlantichttps://www.theatlantic.com/magazine/archive/2016/09/the-audacious-plan-to-save-this-mans-life-by-transplanting-his-head/492755/.

[4] Id. Also see Hannah Osborne, Head Transplants: Sergio Canavero is About to Perform the First Human Surgery- and There’s Nothing to Stop Him, Newsweek, http://www.newsweek.com/head-transplant-surgeon-sergio-canavero-dangerous-maverick-medical-revolution-709332.  “He will remove the head of a patient—an unidentified Chinese national—and attach it to a donor body, origin (and cause of death) unknown. The spinal cord will be fused and the blood vessels and muscles attached. The patient—same head, new body—will be kept in a coma for around a month while he (or she?) heals. Canavero says that if successful, his patient will eventually be able to walk again.”

[5] Lucy Wallis, Living a Conjoined Life, BBC http://www.bbc.com/news/magazine-22181528.  April 25, 2013.

[6] Phineas Gage for instance experienced a transformative change in personality as a result of his accident.

[7] http://www.uniformlaws.org/Act.aspx?title=Anatomical%20Gift%20Act%20(2006).