Space Travel and Space Law implications for incapacity and death – an emerging and challenging reality!
Commercial spaceflight companies are now offering people an opportunity to travel to space for recreational purposes for a fee. The future will see space travel become affordable for everyday people and another form of recreation and/or bucket list item.
This bulletin will look at the Space Law implications for incapacity and death that can stem from space travel risks by examining the legal issues in the context of current law and practice.
At present, space travel can range from a few minutes to a few days. Spaceflights can be suborbital, orbital and beyond the Earth’s orbit. The difference, put simply, is the further you travel in space the greater the speed/velocity of the spacecraft and the greater the risks.
The Russian Space Agency (RSA) successfully conducted orbital space tourism. However, in 2010 the RSA ceased operations. In recent times, a few space tourism companies offering space travel opportunities have emerged.
Virgin Galactic is one such company and is part of the wider Virgin Group. It aims to provide regular suborbital spaceflights for paying customers. Its current space plane, VSS Unity, travelled to outer space in December 2018 as part of its testing process. The company already has a waiting list of people who have paid a $200,000 deposit to secure a place on a flight.
Blue Origin is a space travel company presently focussed on suborbital space travel tourism. It operates a traditional rocket spacecraft, named New Shepard, that takes off and lands vertically. It has conducted test flights. Its aim is to put paying customers into space by placing up to six passengers in a flight. The passengers will have room to perform weightless summersaults. A longer-term objective of this company is to undertake orbital spaceflights.
Space X is another such company founded by Elon Musk. It is focused on providing lunar tourism and other forms of space travel beyond the Earth’s orbit.
Other space travel companies include Orion Span and Boeing. A distinct advantage for Boeing is that it has signed an agreement with NASA as part of its planned space travel tourism program.
What is Space Law?
Space Law is the law that applies to activities conducted by humans in space.
Space Law does pose interesting and challenging questions about jurisdiction and the applicable law in the relevant factual scenario. Factual scenarios from space travel can include incapacity, death, presumption of death and the effect of testamentary instruments and testamentary wishes.
Space Law issues can include space exploration and the entitlement to any valuable rights/information stemming from that exploration. Other issues can be liability for injury or damage in space, the use of weapons, protecting the space environment and information sharing.
The jurisdiction to determine Space Law issues is not straightforward. Conflict of laws issues may arise. Processes, procedures and relevant conflict of law principles carefully considered and agreed in writing can simplify issues of jurisdiction.
Space Law is primarily overseen by two organisations. They are the UN Committee on the Peaceful Uses of Outer Space and the UN Office for Out of Space Affairs. The UN Peaceful Uses of Outer Space Committee has and continues to develop a set of international treaties to cover outer space and planets and celestial bodies, such as the moon and asteroids.
International Space Law requires a country to register a spacecraft. Once registered and subject to any agreement to the contrary, the registering country will have jurisdiction over that spacecraft and the people in it.
The risk of incapacity from space travel is very real, just as it is with travel using more conventional forms of transport such as cars, planes and trains. The following are legal issues that could arise in the event of incapacity during space travel:
Prudent estate planning means adults should sign an enduring power of attorney (financial and legal affairs) an appointment of enduring guardianship (health and care) to cover incapacity during their lifetime. Enduring guardianship documents can contain advance health care directives that may permit care for pain and suffering but not prolonging life artificially with the relevant person being allowed to die naturally.
It is common in these documents to delay commencement of their operation until written medical evidence of incapacity is provided. This raises questions about how such evidence can be obtained if, because of illness or misadventure, a person loses capacity during space travel and urgent action is required on earth and/or in the spacecraft. Will medical practitioners be able to examine the relevant person by video? Will such an examination be acceptable? Will evidence of other people on the spacecraft be required? How can an advance health care directive be acted upon in space? If the NSW Voluntary Assisted Dying Bill 2021 becomes law, how will it operate in relation to a person who is in space?
The absence of a signed enduring power of attorney or a signed appointment of enduring guardian, can lead to proceedings in the NSW Supreme Court (Court) or the Guardianship Division (GD) of the NSW Civil and Administrative Tribunal. The proceedings usually relate to who has the legal right to make decisions about the relevant person’s affairs as a result of their lost legal capacity. How will the Court or GD proceed when the hearing may relate to a person in a spacecraft in orbit or beyond the Earth’s orbit?
The risk of death from space travel is significant, especially with travel beyond the Earth’s orbit at astronomical speed. Legal issues that could arise include:
How do you prove the death of a person in space in circumstances where the body may not return to Earth for a long period of time or at all? Can a death certificate issue to allow the estate administration process to proceed even though the body is still in space?
We may see life imitating art with space travel. A much loved television series “Lost in Space” centred around the adventures of a family and others (including Dr Smith) lost in space and attempting to get back to Earth. If such circumstances were to actually arise, could someone on earth obtain a grant in a lost space traveller’s estate on the legal presumption of death in space? This could alleviate hardship on the family members on Earth who are unable to access that person’s assets in accordance with their Will.
Other issues that may need to be considered are the possibilities of burial in space or having ashes scattered in space. Will that be permissible or will it be considered contamination of the space environment? Will it be at all possible given costs and the problems with how it can be achieved? What happens if there is a Coronial Inquest in relation to the death of a person whose body is still in space?
If you have read this bulletin and think you may need assistance with your legal position as a person interested in space travel and how Space Law affects your estate plan, please feel free to contact the author or any member of our private clients’ team for advice and assistance.
Author: Gerard Basha
(Last accessed on 13 January 2022)
 ‘Space law: the Final Frontier’. Accessed from https://www.anu.edu.au/news/all-news/space-law-the-final-frontier
(Last accessed on 18 December 2021)
 ‘What happens when someone dies in space? Space tourism brings new “legal and moral issues”’. Accessed from https://theconversation.com/what-happens-when-someone-dies-in-space-space-tourism-brings-new-legal-and-moral-issues-169861
(Last accessed on 10 January 2022)