The Thomas Donaldson Case

This page provides the background of the case
See also the appellate brief, appellate court decision, and case abstract

Note: According to Dr. Donaldson's Wikipedia biography, his cancer remained in remission for 18 years. The stated intent of his lawsuit was always to obtain the right to cryopreservation should his tumor begin regrowing, not a desire for immediate cryopreservation.

From Cryonics, June 1990


by Thomas Donaldson

I was born just as World War II was coming to a close. I remember the Korean War much better: our family was born then, with all three of my sisters born about that time. I was a child in the 50s, reading Time and the newspapers. My mother's brother played with radio, then with television. One day he bought a Heathkit color television, put it together, and proudly showed it to our family. Up to then we had lived in black and white.

The title of this article comes from one of Churchill's speeches, exhorting his exhausted people to yet more efforts against Germany. It's been, in personal terms, a long time since then. Yet someday a historian will write of this period, the latter half of the 20th Century, in a single short chapter. Will anyone survive to personally remember all the events of these times? What was it like to see the first color television on the block? That is one question cryonicists are trying to decide. Looked at one way, it's far from the most important question we seek to decide. We have others far more weighty. Looked at another way, it's more important than all the others.

In 1988 I was found to have a brain tumor, which has not gone away. It wasn't in a brain region which affected my thinking but rather one which controlled my physical coordination. The tumor has remained "stable" since then, which means that it hasn't been growing. Every cryonicist knows that someday they will face a similar problem: up to then, they've been healthy (it's an irony that only a few weeks before I had gone through a routine physical. The doctor had declared me healthy, then). Then, what is at first a minor illness grows to a conclusion.

And so, in late April 1990, I was interviewed by a reporter, Cynthia Gorney, for the Washington Post. She had already spent some time on cryonics, and knew beforehand that I would be filing a lawsuit. She took me out to dinner in an Indian restaurant, where we talked for hours. And she had noticed something about me, and about the people at Alcor. "You all seem as if you are fighting a war," she said slowly over her lamb korma. To which I nodded in agreement. Of course. We are fighting for our lives.

The lawsuit was filed on 1 May 1990. It argues that by Amendments 5, 9, and 14 of the United States Constitution and Article I, Sec 1 of the California Constitution, I have a right to cryonic suspension even before I am declared legally dead. And so, on 1 May 1990, I entered into one major battle of this immortalist war.

The constitutional provisions:

California Constitution, Article I, Sec 1:

All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and obtaining safety and happiness.

US Federal Constitution:

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time or war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment XIV, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.

Perhaps we may lose this particular battle. Yet when we entered it we gathered our forces to attack a major fortress that has oppressed cryonicists from the beginning: the Legal Declaration of Death. If we lose this battle now I'm sure that we'll come back again. And again, and again, until we win.

We all understand this Legal Death, since we have all made suspension arrangements. WE know that it is merely a piece of paper signed by a doctor. Yet it still bears down on us. To the noncryonics legal system, to suspend someone before Legal Death constitutes Murder. To suspend them after Legal Death constitutes a trivial personal preference about garbage disposal.

Cryonic suspension only after Legal Death has gone on since we began. It has affected cryonics very deeply. How many people do you know who would define "cryonics" as "freezing people after they are dead"? And of course, how often have you noticed how confusing these people find us? When someone is dead, they say, they are gone forever. How could I be revived? Wouldn't it just be my body, inhabited now not by me but by some malign revenant? We've tried to explain ourselves to these people by renaming it, but they don't accept our names. To be "dead" is by definition to be gone forever. No amount of playing with mirrors can convince these puzzled people otherwise.

Not only that, but cryonic suspension only after Legal Death has cost cryonicists both in heartbreak and in money. The heartbreak comes because right now no suspension can happen without that Magic Paper. And so many times a suspension team must sit waiting, while their patient slowly deteriorates, until an indifferent MD signs the Magic Paper. Even with a friendly doctor it causes us trouble. Suspension teams have waited weeks for that Magic Paper: doing nothing but waiting. Patients have had multiple strokes, with more and more brain damage, but just would not stop breathing, all while their suspension team waits.

The Legal Declaration of Death has shaped cryonics from the beginning. It's why isolated cryonicists have such a hard time finding others: even if I want suspension, if the nearest center is 2000 miles away why should I join up? They could never reach me soon enough. Most deaths aren't accidental emergencies, but cryonicists have had to treat ALL deaths as accidental. When a patient lies dying the cryonics team must drop everything to run to their assistance.

It's because of the Magic Paper that we can still do little for cryonicists in Australia, or Samoa, or Argentina, or even Montana. And even when a small group of cryonicists starts forming somewhere, they must immediately spend all their effort and money on a suspension kit. (Do you there far away want cryonic suspension? Then spend a tenth of your income on emergency preparations! No wonder recruitment has been so hard.)

How has this battle gone so far? Well, there's been an almighty bang when the opposing forces first collided, but very little actual movement as yet.

The bang was the publicity. By pure accident I avoided a lot of the initial stages (I had made quite immovable plans to be in Australia when, without ever consulting me, the first guns were fired). Despite this, I and everyone else at Alcor have been very busy with publicity since. I, Carlos Mondragon, and Mike Darwin have appeared on the Donahue Show; I and Carlos have appeared on "Sonya Live," a CNN program. Alexander von Wechmar, German correspondent in America, came with a team of three to interview me. "Inside Report" has done a story, as has CBS News. Steven Lambert, of the BBC, wants to do a thoughtful British documentary on my case. A team from Spanish National television has interviewed me (and Carlos too, so I understand). Requests for radio interviews have poured in. It became very clear that by suing to allow cryonic suspension before Legal Death I had touched a nerve.

But what about the actual motion? Well, we've filed the suit. That is, in old-fashioned terms, we've sent our herald to announce a battle. Apparently about a month from now we may learn when the hearing takes place. If simply filing a suit could make so much noise, I wonder what noise a hearing might cause . . .

There's an irony here which only cryonicists can see. All of these people are reacting to nothing more than a piece of paper. That Magic Paper casts a spell over them still. It affects us so much not because it bewitches us too, but because we must deal with so many others who are bewitched. And so the Magic Paper attains an ersatz reality.

If we win this lawsuit, as everyone hopes, what will we do next? Perhaps we could try to get the Medical Insurance companies to pay for suspension? After all, the money spent fruitlessly avoiding death often equals or exceeds the cost of suspension . . . It would only be rational. But then rationality does not seem common at all on this subject, which is so close to everyone even though they constantly try to look away from it. Perhaps another lawsuit, many years from now.


From Cryonics, October 1990


by Carlos Mondragon

On Friday, September 14th, in Santa Barbara Superior Court, the now famous case entitled Donaldson v. Van de Kamp got its first hearing. The issue at hand was the demurrer filed by the Attorney General. A demurrer is an assertion that the case as a matter of law has no merit, and hence should not be heard. The judge had three options: a) overrule the demurrer and allow the case to be heard in his court; b) sustain the demurrer and deny Donaldson leave to amend his complaint (thus sending the case directly to the appellate court); or c) sustain the demurrer and give Donaldson leave to amend the complaint. Judge Ronald Stevens predictably decided on "c." This means that Donaldson has the opportunity to make new arguments before the same judge before going on to the appellate court.

Donaldson, represented by Christopher Ashworth of the Los Angeles law firm of Garfield, Tepper, Ashworth & Epstein, had made the argument that precedent-making cases which have given terminal patients the right to "pull the plug" applied to him as well. The Attorney General, represented by Kristofer Jorstad, argued that there is a great difference between the right to refuse medical treatment (including nutrition and hydration) and the commission of an act of "suicide," or if assisted by others "murder one." Chris Ashworth argued eloquently that the distinction is a "romantic fiction," and that there is no logical difference between "sitting on the beach until being submerged by the incoming tide and walking into the sea." Ashworth's arguments were derived from the written opinion of none other than Supreme Court Justice Antonin Scalia. Writing in the Cruzan case, Justice Scalia drew an even more appropriate analogy: "It would not make much sense to say. . . that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing."

Judge Stevens allowed Mr. Ashworth an extraordinary amount of time without interruption to make his oral presentation. His questions and comments demonstrated compassion and sympathy for Donaldson's situation. But in the end, he simply didn't have what it takes to take that "giant step" from the "refusal of medical treatment" to "assisted suicide." The judge's attitude was that there ought to be a law, but he wasn't going to be the one to make it.

Some time in late September, Mr. Ashworth will decide whether to give Judge Stevens another try or to go directly to the appellate court. Either way, this hearing was only the first of many along the way to an ultimate resolution of this case.


From Cryonics, March 1992


by Thomas Donaldson

On January 29, 1992, the Santa Barbara Appeals Court denied our appeal. Fundamentally, the Appeals Court decided that they were not going to accept our appeal because if they did so it would make the general laws against murder much harder to formulate or even to verify whether or not a murder had occurred. Since they did not wish murder to happen, and felt that even the smallest concession would open too many loopholes, our appeal was denied.

I personally am unhappy about this but I am not devastated by it. Cryonics has met, in my experience, rebuffs far too many to count. This merely becomes another one to add to the growing pile. I personally did not enter into the lawsuit believing that a victory was certain, I did so because I believed it had to be done, that eventually such a suit would be won, and there must always be a first time.

My own health, if anything, has been improving. The death rate statistics for people with my condition say that only 30% survive long term. When we began the suit, my future looked much more grim than it does now. Naturally I (and my doctors) will keep a close watch; but I've been lucky even to live this long, and the longer I live the better my future will look.

Unfortunately, there is at least one Alcor member with an even worse version of the same kind of tumor as I. I hope very much that this judgment does not get in the way of his suspension.

I have always believed that life is hard. We can rejoice much more, then, in whatever victories we can snatch from the chaos around us. I know that many people may be disappointed, too — the suit after all was a test case. But my own response is to keep on, and do what I can toward cryonics and my own future suspension, at whatever time it may occur. In the end we will win by persistence, not by any sudden blazing victory.

Finally, I want to thank all those cryonicists who have contributed to the support of this lawsuit. I do not believe that, ultimately, their contributions will turn out to have been in vain.

See also the appellate brief, appellate court decision, and case abstract