The possibility of the world’s first head transplant is a medical law nightmare

Questions posed by Mary Shelley centuries ago about what it means to be a person lie unanswered

Late last month, it was reported that Sergio Canavero — a controversial doctor who believes a new form of surgery he’s spearheaded could hold the key to immortality — had completed a “successful” head transplant on a human corpse. Canavero hopes his HEAVEN surgery, shorthand for “head anastomosis venture”, will be performed on living patients in the near future.

Though of course the “success” of last month’s feat has limits, most obviously because the transplanter and transplantee were dead, talk has turned to whether this head (or body) transplant will be a success when conducted on a living person. Common arguments made by healthcare professionals against the procedure include the permanent damage to the brain and other organs due to the lack of blood flow while conducting such a trial. Bioethicist Arthur Caplan described it as “rotten scientifically”, while a doctor of neuroscience, Dean Burnett, complained:

“Doctors have, in recent years, ‘reattached’ a severely damaged spinal cord in a young child, but the key-word is ‘damaged’, not ‘completely severed’; there’s enough connection still to work with, to repair and reinforce. And this is with a young child, with a still-developing nervous system better able to compensate. Even taking all this into account, and the advanced state of modern medicine, the successful procedure was considered borderline miraculous.”

He continued: “So, to attach a completely severed spinal cord, a fully developed adult one, onto a different one, one that’s maybe been dead for days? That’s, what, at least four further miracles required?”

Canavero — who last year called his monkey experiment a success, though it never involved the connecting of the spinal cord and the monkey never regained consciousness — is sticking to his plans of a living human head transplant. And, if it does go ahead, the lack of legal discussions by medical lawyers is worrisome.

The pressing question to be asked is: What is the legal identity of the person once (and if they do) wake up from such a surgery? After creating a hybrid of person A and person B, who is this person C we’d have in front of us? Who has legal responsibility over this person?

Important questions of personhood aside, there’s also looming confusion about whether healthcare professionals should, and to what extent be allowed to, conduct such innovative surgical interventions. After all, the focus for any surgery should be whether the potential risks can be justified; it seems appropriate to ask these questions when considering the purpose of this research.

Are their criminal implications if the surgery fails? What sort of criminal charges will be presented for the doctors? Lawyers for the doctors would likely argue this surgery was done with the informed consent of the patient, but can consent ever be truly informed with a new procedure like this?

It seems it is not by accident this research and surgery is taking place in China. The country is notably lenient when considering claims for medical malpractice. One recent example of this is reports China mass harvested the organs of executed prisoners. On this, a former Chinese deputy health minister said:

“There is zero tolerance. However, China is a big country with a 1.3 billion population so I am sure, definitely, there is some violation of the law.”

A dose of reality is required when considering human head transplants. It is already hard to find enough people to donate liver, lungs, heart and other organs, let alone an entire body. And even if this surgery is a success, the funding of such could only be covered by those with the funding and resources to do so.

Instead, it is far more justifiable to fund research on spinal cord injuries and other pressing issues such as cancer than to seek out whole body donations for the gain and most likely glory of few without any concrete evidence that this is furthering to the quality of patient lives. Perhaps this is China’s way to push its ‘home of innovation’ mantra? Or perhaps this story is just a further reminder that lawyers need to keep up and have new discussions on the day-by-day furthering of technology.

Whatever your views, it seems the law is still longing for answers to the questions written by Mary Shelley two centuries ago in her world-famous novel, Frankenstein: “Who was I? What was I? Whence did I come? What was my destination?”

Ceylan Simsek is a University of Greenwich law graduate and an LPC student at BPP University.