IN RE GLOVER
Leonard Tushnet
In re Glover finally reached the Supreme Court. The nine Justices, in their Friday conference, were unanimous that a writ of certiorari be granted and that the case be heard. Unanimous on those points, they had already made up their separate minds about various phases of the case and each of them was already preparing a memorandum for his opinion. In re Glover would set landmarks in law, in a new field of law as well as in the laws of wills, mortmain, trusts, and homicide, with overtones to be subtly discussed in obiter dicta bearing on euthanasia and medical and legal malpractice.
It looked, on the surface, like a simple case of merely determining the facts, ordinarily not in the purview of such an august body as the Supreme Court of the United States. Ralph Glover, the brilliant and dynamic founder of the many-sided business empire bearing his name had died—or had he? If he were dead, his four sons by his first wife and his two daughters by his second (both wives having predeceased him, if that term could be used without prejudice) were due to inherit the entire estate, share and share alike, after a number of relatively minor bequests had been paid; the great Glover Foundation, the internationally known medical research institution, was to get nothing, having been the recipient of munificent gifts during its founder's lifetime; the Federal government and the states of residence of the heirs were eargerly anticipating the considerable inheritance taxes. If he were not dead, the trustees of the tax-free Glover Foundation would continue to receive, as they had for five years now, all revenues from the many corporations constituting the Glover enterprises; the children were to fend for themselves, meaning that the sons and sons-in-law would have to find jobs; and the Federal and State governments would have to wait until Glover's actual demise to collect.
Mr. Allen Freundlich, J., in the succinct manner for which he was noted, summarized the scientific background thus: (i) When living tissues are frozen, the ice crystals formed by the frozen intracellular water occupy a larger space than liquid water; hence the cell walls are ruptured and tissue death ensues. (2) The chemical, dimethylsulfoxide, commonly know as DMSO, had the remarkable property of being able to bind to itself intracellular water, so that below o° Centigrade no ice crystals are formed and cell structure, except for its physical state, remains unchanged. (3) When DMSO is injected intravenously into the body of a small mammal, that mammal by a quick-freezing process could withstand the lowering of its body temperature to well below the freezing point of water and could then remain in that frozen state, like packaged meat in a supermarket, without tissue damage and with suspension of all vital functions. (4) It could then be slowly returned to its normal temperature and those functions would return, including resumption of activity in the higher cerebral centers. Rats, so frozen and later thawed out, ate and drank and copulated and ran easily through the paths of mazes they had previously learned, just as they had before the artificially induced hibernation or state of suspended animation. Experiments had demonstrated that such hibernation was without harm for at least ten years and probably longer, but it was only ten years ago that the first batch of animals had been frozen. (5) What was true of rats was true of larger mammals, including primates. Rhesus monkeys, a gibbon, and two chimpanzees had successfully survived the process; the chimpanzees had thereafter been mated and been shown to be fertile. (6) The procedure had no ill effects on the animals other than that they developed cataracts, opacification of the lenses of the eyes, a condition easily correctible by surgery. (7) Once thawed out, however, re-freezing could not take place without damage to vital organs; why this should occur was not known.
Mr. Henry Gibson, J., gave the stipulated facts: Mr. Ralph Glover, aged sixty-two, in full possession of his faculties, suffering from an inoperable cancer of the pancreas which had spread to his liver, had had DMSO injected and had been artificially frozen. He (or his body) was now lying in the freezer vaults of the Abby C. Glover Memorial Hospital in New York City; the vaults ordinarily were used to preserve cadavers for dissection. The injection and the subsequent freezing had been done by a medical team headed by Doctors Green and Hankey, who assumed full responsibility for their actions. They had acted under instructions of Mr. Ralph Glover himself. The letter of instructions was in the exhibits; it had been carefully drawn up by the highly reputable firm of Shires, Band, and Jarvis, and Mr. Glover's signature had been witnessed by the senior partners. The letter, in the form of a contract between Doctors Green and Hankey and Ralph Glover, gave full and free permission to carry out the procedure, its purpose being the maintenance of Glover's life; he (or his body) was to remain in suspended animation until such time as a cure for cancer was discovered; he was then to be thawed out and restored to activity (or life?). During the period of hibernation Doctors Green and Hankey or successors appointed by them were to be joint agents with full powers of attorney to act for Ralph Glover in any and all capacities and were to use the net profits of all the Glover enterprises for intensive cancer research.
The case had first been brought up in Surrogate's Court in New York, where Adolf Brun, Glover's chauffeur, had sued for a declaration that his employer was dead and had demanded that his will be admitted to probate so that he could receive the $1000 bequest his (ex-?) employer had informed him he was to have. Then the complications started. The Glover Foundation said that Ralph Glover was still alive and that to probate the will was premature, to say the least. Three of the heirs (?) sued in a lower Federal court (because of the diversity of citizenship) for distribution of the assets of the estate of their deceased (?) father. Doctors Green and Hankey were indicted and found guilty of wilful homicide in that they knowingly caused death by the injection of a noxious drug. They appealed their convictions on the ground that error had been committed by the trial judge when he admitted evidence (?) that Ralph Glover was indeed dead when he was not, that evidence having consisted of the inspection by the medical examiner of the body (?) in the freezer vault. The five man Court of Appeals, sitting en banc, upheld the conviction, but Judge Minglin dissented strongly, saying that the supposed decedent was in posse alive and that no corpus delicti was produced.
The ordinance requiring an autopsy to be performed on all persons suspected of having died by violence was invoked by Archibald Smythe, a son-in-law, but a temporary injunction against such an autopsy was granted on petition of Luke Glover, a son. He challenged the city's right to order the mutilation of a corpse (?) without permission of the near relatives, especially since such a corpse (?) was not available, as Judge Minglin had pointed out.
The heirs (?), in addition, brought suit for medical malpractice against Doctors Green and Hankey and the Abby C. Glover Memorial Hospital, where the procedure was carried out. They won a very large award, which was being contested by the Caducean Medical Liability Insurance Company, which said that the heirs (?) had no substantive right to sue on the behalf of an adult individual who was alive and who was capable, when he was restored to full consciousness, of saying whether or not he had been injured by the procedure.
Certain members of the New York State Bar Associaion had asked for a vote of censure of the firm of Shires, Band, and Jarvis for violation of ethical standards of the bar, in that the firm participated in the drawing up of a contract that was grossly immoral and fraudulent. By a very narrow margin the vote was held up pending the report of an ad hoc committee. The committee was seeking from the courts an opinion whether the contract was fraudulent in its statement of purpose, which implied human immortality, a state inconsistent with fact and contrary to the Blasphemy Act passed during the early days of the sovereign State of New York and never repealed. The Society for the Advancement of Atheism asked leave to submit a brief amicus curiae to show that the Act contravened the First Amendment to the Constitution.
Furthermore, the firm of Shires, Band, and Jarvis was being charged by the Attorney General of the State of New York with entering into a conspiracy against public policy, that policy being that no man had a right to commit suicide. The doctors, as well, were accused of spreading a vile and pernicious doctrine, one that had been condemned in the American courts in Wiggins v. Moore and internationally in the Nuremberg trials, to wit, that the lives of hopelessly ill patients could be taken without impunity under the guise of easing their suffering and pain.
The State Tax Commissions of the sovereign states of California, New York, Ohio, and Florida also sued for distribution of the assets of the Glover estate because acceptance of the continued existence of Ralph Glover in his present state (alive or dead) would be a novel evasion of the laws regarding mortmain, in that a corporation controlling land and property was preventing the just payment of taxes due to the states.
The Federal government brought action to void the tax-exempt status of the Glover Foundation on the basis that it existed solely for the purpose of keeping a man alive (?), a laudable goal but not one covered by existing tax laws regarding charitable trusts.
The Glover Foundation itself, through motion by a majority of its trustees, sought to have Doctors Green and Hankey removed from their posts because they were convicted felons and hence had no legal right to act as agents for Ralph Glover. In this they were supported by the directors of General Diatronics and Magnolia Consolidated, Glover subsidiaries, who refused to obey a court order to turn over the net profits of the companies to the doctors.
Doctors Green and Hankey, furthermore, sued to set aside the ruling of the New York State Board of Health that the body (?) of Ralph Glover be buried or cremated according to local ordinances and state law, five years being too long and too repugnant to good taste and morals to keep a corpse (?) on ice, so to speak.
The doctors also sought a declaratory judgment from the Food and Drug Administration that DMSO was a harmless drug incapable of causing death in the dosage used on Glover; the judgment was refused on the tenuous ground that the Administration, as a branch of the Executive, never intervened in a matter before the judicial arm of the government.
An injunction was sought and obtained by Agnes Litinsky, one of the minor legatees, against any attempt at thawing out, on the ground that she had a vested interest in the estate and until final adjudication should be made she was not to be disturbed in that right. The injunction was put aside on petition of Countess de Croix, one of Glover's daughters. She, in turn, wanted a legal guardian appointed for her father, he being incapable and incompetent in his present state of health of managing his own affairs; that plea was fought by two of her brothers and one sister, whose lawyers argued that it was absurd to appoint a guardian for a dead man.
The tangled web was now before the Court. By agreement of the parties concerned, all the cases were consolidated for final judgment, hinging as they did on the question of the quick or dead status of Ralph Glover. To the voluminous briefs of the pleaders were appended those of the organizations given leave to participate as amici curiae, the most important of which were the Society of Experimental Biologists and the American Cryologic Association. The former argued that judgment adverse to the doctors would set back developments in organ transplantation techniques because of the fear physicians would then have were there untoward results. The latter protested that to characterize freezing of living persons as murder was to invade the liberty of an individual to do with his body as he pleased.
The Chief Justice ordered the Gordian knot to be cut. He was proud of his suggestion: that the body (?) of Ralph Glover be inspected by a special master who would then give his opinion whether Ralph Glover was dead. He was chagrined at the report of the special master, who had taken a team of medical forensic experts with him for the inspection. The special master said that the electroencephalograms were equivocal; they showed none of the brain waves normally present in living persons, nor did the electrocardiograms show any evidence of electrical current in the heart muscle; however, he pointed out, at the very low temperature at which the body (?) was maintained, electrical conductivity was expected to be minimal, if present at all. No pulse nor heart beat nor respiratory movements were found. Those findings were of equally little value because, as had been shown in the famous Warsaw Hunger Project, the time when life departed was difficult to ascertain when metabolism was close to zero. Blood., because it was frozen, could not be drawn for oxygen level determination. Examination of the eye grounds to see the state of the blood vessels was impossible because of the clouding of the lenses and the opacification of the aqueous and vitreous humors. No lividity of the dependent tissues was found, a condition which should have occurred a few hours after death, not to say five years. To further confuse the picture, a small section of skin was taken for biopsy (or autopsy); when thawed out its microscopic detail showed cloudy swelling of the cells, a common sign of death but also, alas! present in cachectic or wasting states such as advanced cancer.
The Justices read the report and looked at each other glumly. Mr. Robert Gordon, J., an irascible old man who refused to retire and who had no use for newfangled ideas, snorted, "Well, that gets us nowhere. All right, let's issue a writ of habeas corpus. Let the body be brought into court." He chuckled. "That way it'll have to be unfrozen. If the man's alive, all the cases fall out. If he's permanently dead—what an expression!—judgment will be easy in every case."
Mr. William Cluney, J., the most junior member of the Bench, pursed his lips and said, "I wish to remind my learned brother that we cannot issue the writ as an original matter except in the sharply delimited areas within our jurisdiction. Also, even as an appellate court, we can issue it only to determine if the corpus is detained by an inferior court that has acted without jurisdiction or in excess of authority. To do otherwise would require an act of Congress extending our power. Can you imagine the uproar if we asked for that after our segregation and civil rights decisions?"
The Chief Justice nodded. "I agree. That we cannot do. But my brother's suggestion has merit. Let us order that the corpus be thawed out for the purpose of determining his (or its) intentions in the letter of instructions. We have an out there. Glover said that the purpose of the procedure was to maintain his life until a cure for cancer was found. That is too indeterminate a date. It is the equivalent of the establishment of a trust in perpetuity. We can say a term must be put to the period of refrigeration and that term must be stated viva voce or by sworn affidavit by Glover himself."
Justice Freundlich shook his head. "That won't do. If we order the thawing out we shall be interfering with the terms of the contract with the doctors. He cannot be refrozen. We can order the contract broken only if it is contrary to public policy or to a specific statute. Otherwise we are in effect condemning Glover to a real death—if he's not dead already."
"Furthermore," Justice Gibson broke in, "we cannot order the doctors, who have been found guilty of homicide, to carry out the thawing process without the tacit assumption that they are not guilty and that the corpus is revivable. That is the same as our finding that Glover is indeed alive without any evidence to prove our belief. And, if we feel that he is alive, then there is no need for the thawing out. Something else. If we issue such an order we are returning to trial by ordeal. If the man's alive, the doctors are free of the homicide charge but exposed to suits for enormous damages by the Glover Foundation and by Glover himself for breach of contract. If the man is dead, they are incriminating themselves by their failure to—to—to resurrect him."
The meeting was adjourned without a decision. To put on a show to indicate that they knew what they were doing, they assigned their bright young law clerks to the preparation of memoranda on the nature of contracts made in anticipation of death, on the responsibility of lunatics (specifically those with a pathologic horror mortis) in the making of agreements, and on the laws concerning the duties of physicians to their patients in the presence of certain death.
On the following Monday the union of stationary firemen and operating engineers went on strike in New York City. It was an inopportune time for hospitals and other institutions depending on auxiliary generators in an emergency, for on Wednesday came the tremendous lightning storm on the upper East coast that blew down power lines and knocked out electrical grids. New York City had no electricity for fourteen hours.
Naturally, all refrigerating systems were affected. No ice was available for highballs, meat spoiled in food lockers, and vaccines and other biological supplies were ruined.
The Abby C. Glover Memorial Hospital and its freezing vaults did not escape the effects of the power failure. All the animals in suspended animation died. So finally did Ralph Glover, as Doctors Hankey and Green sadly reported to their attorneys, who promptly telegraphed the news to Washington.
On Friday the Justices met again. The Chief Justice heaved a sigh of relief when his very brief opinion In re Glover was read and when for the first time in six years the Court was unanimous in supporting him. They agreed, 9–0, to accept as their judgment, "This Court finds that Ralph Glover died by an act of God on an indeterminable date." Thereby they sidestepped all issues raised in the pleadings before the Court. There followed a series of orders remanding the disputed cases back to the lower courts for final disposition.
The Countess de Croix, out of a sense of filial duty and to take advantage of loopholes in the tax regulations, organized a non-profit corporation, called the DMSO-Cryobiologic Institute, under the laws of the State: of Delaware. Its stated purpose was to repeat the same procedure as was used for her father on human volunteers. A permanent injunction against such experimentation was sought by the And-Vivisection Society in spite of the fact that to date no one has yet volunteered, an indication of lack; of faith in the American power industry.
Afterword
Determining the exact time of death (or birth) is very important in forensic medicine. When I was an intern, the first squawk of the baby was registered by the assisting nurse as the time it was born. For twins this is obviously necessary but for single births the time is also material. Consider—if two sisters give birth in the same hour (as has happened in my practice) and the grandfather has left a sum of money to the oldest grandchild, who came first is of decided moment.
As for the time of death, every doctor can testify it is a pain (physically and emotionally) to "pronounce" a patient dead, especially when death occurs at three A.M. or another time equally inconvenient for the attending physician. And yet—when the patient died is important, and not only in detective stories. Did he predecease his wife in a common accident or a mutual suicide pact? Was he alive at the time of death of another person who left him money?
Today, in the sanguinary era of cardiac transplants, the exact time of death is of extreme importance. Already malpractice suits and charges of willful homicide have been brought against doctors who participated in a cardiac transplant operation. Furthermore, now it is possible to maintain the semblance of life (if a vegetable is considered alive) by various artificial measures. A delicate problem in medical ethics has arisen. Is it the duty of the doctor "officiously to keep alive" the hopelessly ill patient? But then who will be the callous judge who will take on himself the responsibility of stopping the intravenouses, the cardiac stimulation, the artificial respiration? A papal statement has decried the unnecessary and meaningless prolongation of what is called life when recovery is hopeless. The Swedish medical authorities have permitted the ending of supportive measures in the same type of cases. Think now—was the patient alive when those measures were instituted or was he dead?
And now we have cryobiologics. Cold-blooded animals have been quick-frozen and have been revived. And lately, a Cuban stowaway successfully survived oxygen deprivation and a temperature hitherto believed to be too low for the maintenance of life.
Maybe the above story isn't too far out If human volunteers can be found who will be willing to be frozen and if scientists can be discovered who will experiment on the corpore vili and if the freezing techniques will not be dependent on our present power supply, well, then—