Report: Rules on Informed Consent of Space Tourists Need to Be Clarified

Regulations for informing space tourists about the risks they face on suborbital flights need to be clarified, according to a report presented to the FAA’s Commercial Space Transportation Advisory Council.

The review, done by A-P-T Research, Inc., notes that there is uncertainty over whether waivers signed by tourists would cover the inherent risks of space tourism and protect space tourism companies from being sued for negligence.

“Because the regulation mandates written informed consent and, legally speaking, informed consent only provides legal protection (defense) from the inherent risks of an activity and not from negligence, there is some confusion as to whether any private contract (release and waiver document) that seeks pre-activity exculpation from inherent risks and negligence (standard in the adventure world) would be valid

“Where the Appendices to the Final rule provide exculpatory style documents in favor of the government as the permitting agency, there is reason to believe that exculpatory documents between a commercial operator and a SFP [space flight participant] would be allowed. How these documents would legally interact with and/or be affected by the requisite of written informed consent needs to be clarified. An additional issue is how the requisite of written informed consent may affect other defenses that would normally be available to a commercial operator – like assumption of the risk.”

The key will be to establish what constitutes materiality, along the lines of the standards used by doctors to disclose risks to patients. “Clarification of how materiality gets satisfied – either by what the operator believes is material or by what the SFP thinks is material should be provided,” the report states.

“Collaboration with industry may well be necessary or expedient at this point. Where it has been widely publicized that a leading suborbital provider has signed up literally thousands of prospective SFP’s and has begun working with them, or at least working with some of their ‘founders,’ using this early group to determine or establish materiality may well be revealing for industry,” the report recommended.