REVISED UNIFORM ANATOMICAL GIFT ACT
Prefatory Note
As of January,
2006 there were over 92,000 individuals on the waiting list for organ
transplantation, and the list keeps growing. It is estimated that approximately
5,000 individuals join the waiting list each year. See “Organ Donation: Opportunities for Action,” Institute of Medicine
of the National Academies (2006) www.nap.edu. Every hour another person in the United States
dies because of the lack of an organ to provide a life saving organ transplant.
The lack of
organs results from the lack of organ donors. For example, according to the
Scientific Registry of Transplant Recipients in 2005 when there were about 90,000
people on the organ transplant waiting list, there were 13,091 individuals who
died under the age of 70 using cardiac and brain death criteria and who were
eligible to be organ donors. Of these, only 58% or 7,593 were actual donors who
provided just over 23,000 organs. Living donors, primarily of kidneys,
contributed about 6,800 more organs. Between them about 28,000 organs were
transplanted into patients on the waiting list in 2005. (See www.optn.org).
The 2005 data
on cadaveric organ donors suggests there were 5,498 individuals who died that
year that could have been donors who weren’t and that had they been organ
donors there would have been approximately 17,000 additional organs potentially
available for transplantation. (See generally, www.unos.org
and www.ustransplant.org). However,
these numbers to some extent are only estimates. First, they exclude
individuals dying over the age of 70. Second, the data are self reported for
eligible donors. Indicative of the absence of precision in this area is the
report from the Institute
of Medicine. According to
the IOM, it has been estimated that donor-eligible deaths range between 10,500
and 16,800 per year. See Organ Donation: Opportunities for
Action,” Institute
of Medicine of the
National Academies (2006) at page 27. www.nap.edu
Using the 2005 figures for deceased organ donors, this would suggest
that between approximately 3,000 and 9,000 decedents could have been donors but
weren’t. Further, if one assumes an average of three solid organs recovered
from each of them, there could be between 9,000 and 27,000 more organs that
might have been available to transplant into individuals on the waiting list.
The
data for eye and tissue is, however, more encouraging. On an annual basis there
are approximately 50,000 eye donors and tissue donors and over 1,000,000 ocular
and tissue transplants.
This
Revised Uniform Anatomical Gift Act (“UAGA”) is promulgated by the National
Conference of Commissioners on Uniform State Laws (“NCCUSL”) to address in part
the critical organ shortage by providing additional ways for making organ, eye,
and tissue donations. The original UAGA was promulgated by NCCUSL in 1968 and
promptly enacted by all states. In 1987, the UAGA was revised and updated, but
only 26 states adopted that version. Since 1987, many states have adopted
non-uniform amendments to their anatomical gift acts. The law among the various
states is no longer uniform and harmonious, and the diversity of law is an
impediment to transplantation. Furthermore the federal government has been
increasingly active in the organ transplant process.
Since
1987, there also have been substantial improvements in the technology and
practice of organ, eye, and tissue transplantation and therapy. And, the need
for organs, eyes, and tissue for research and education has increased to assure
more successful transplantations and therapies. The improvements in technology
and the growing needs of the research community have correspondingly increased
the need for more donors.
This
2006 Revised UAGA is promulgated with the substantial and active participation
of the major stakeholders representing donors, recipients, doctors, procurement
organizations, regulators, and others affected. The Drafting Committee held
four meetings with the stakeholders beginning on Friday morning and ending
Sunday noon, reading and discussing each section of the drafts word by word (Chicago, December 3-5, 2004; Philadelphia,
March 18-20, 2005; Chicago, November 2-4, 2005;
and Detroit,
April 21-23, 2006). The following stakeholders were actively engaged in the
dialogue working for a consensus that could and should be adopted on a uniform
basis to facilitate the anatomical gifts of human bodies and parts: American
Bar Association, American Medical Association, American Lung Association,
Association of Organ Procurement Organizations, American Association of Tissue
Banks, Eye Bank Association of America, Health Law Institute and Center for
Race and Bioethics, Life Alaska Donor Services, Musculoskeletal Transplant
Foundation, National Association of Medical Examiners, National Disease
Research Interchange, National Kidney Foundation, North American Transplant
Coordinators Organization, RTI Donor Services, United Network for Organ Sharing
(UNOS) and United States Department of Health & Human Services. In
addition, there were many who contributed their views and comments by
correspondence, including the Funeral Consumers Alliance, Inc. and Funeral
Ethics Organization.
This
[act] adheres to the significant policy determinations reflected in existing
anatomical gift acts. First, the [act] is designed to encourage the making of
anatomical gifts. Second, the [act] is designed to honor and respect the
autonomy interest of individuals to make or not to make an anatomical gift of
their body or parts. Third, the [act] preserves the current anatomical gift system
founded upon altruism by requiring a positive affirmation of an intent to make
a gift and prohibiting the sale and purchase of organs. This [act] includes a
number of provisions, discussed below, that enhance these policies.
History of 1968 and 1987 Acts
The
first reported medical transplant occurred in the third century. However,
medical miracles flowing from transplants are truly a modern story beginning in
the first decade of the twentieth century with the first successful transplant
of a cornea. But, not until three events occurred in the twentieth century, in
addition to the development of surgical techniques to effectuate a transplant,
could transplants become a viable option to save and meaningfully extend lives.
The
first event was the development in the late 1960s of the first set of
neurological criteria for determining death. These criteria allowed persons to
be declared dead upon the cessation of all brain activity. Ultimately these
criteria, together with the historic measure of determining death by cessation
of circulation and respiration, were incorporated into Section 1 of the Uniform
Determination of Death Act providing that: “An individual who has sustained
either (1) irreversible cessation of circulatory and respiratory function, or
(2) irreversible cessation of all functions of the entire brain, including the
brain stem, is dead.”
The
second event, following shortly after Dr. Christian Barnard’s successful
transplant of a heart in November, 1967, was this Conference’s adoption of the
first Uniform Anatomical Gift Act. In short order, every jurisdiction uniformly
adopted the 1968 Act. The most significant contribution of the 1968 Act was to
create a right to donate organs, eyes, and tissue. This right was not clearly
recognized at common law. By creating this right, individuals became empowered
to donate their parts or their loved one’s parts to save or improve the lives
of others.
The
last event was the development of immunosuppressive drugs that prevented organ
recipients from rejecting transplanted organs. This permitted many more
successful organ transplants, thus contributing to the rapid growth in the
demand for organs and the need for changes in the law to facilitate the making
of anatomical gifts.
In
1987, a revised Uniform Anatomical Gift Act was promulgated to address changes
in circumstances and in practice. Only 26 jurisdictions enacted the 1987
revision. Consequently, there is significant non-uniformity between states with
the 1968 Act and those with the 1987 revisions. Neither of those acts comports
with changes in federal law adopted subsequent to the 1987 Act relating to the
role of hospitals and procurement organization in securing organs, eyes, and
tissues for transplantation. And, both of them have impediments that are
inconsistent with a policy to encourage donation.
The
two previous anatomical gift acts, as well as this [act], adhere to an “opt in”
principle as its default rule. Thus, an individual becomes a donor only if the
donor or someone acting on the donor’s behalf affirmatively makes an anatomical
gift. The system universally adopted in this country is contrary to the system
adopted in some countries, primarily in Europe,
where an individual is deemed to be a donor unless the individual or another
person acting on the individual’s behalf “opts out.” This other system is known
as “presumed consent.” While there are proponents of presumed consent who
believe the concept of presumed consent could receive in the future a favorable
reception in this country, the professional consensus appears to be not to
replace the present opt-in principle at this time. See “Organ Donation: Opportunities in Action,” Institute of Medicine
of the National Academies (2006) at page 12.
Scope of the 2006 Revised Act
This
[act] is limited in scope to donations from deceased donors as a result of
gifts made before or after their deaths. Although recently there has been a
significant increase in so-called “living donations,” where a living donor
immediately donates an organ (typically a kidney or a section of a liver) to a
recipient, donations by living donors are not covered in this [act] because
they raise distinct and difficult legal issues that are more appropriate for a
separate act.
A
majority of donors or prospective donors are candidates for donation of eyes or
tissue, but only a small percentage of individuals die under circumstances that
permit an anatomical gift of an organ. To procure an anatomical gift for
transplantation, therapy, research, or education, a donor or prospective donor
must be declared dead (see Uniform
Determination of Death Act). In cases of potential organ donation, measures
necessary to ensure the medical suitability of an organ for transplantation or
therapy are administered to a patient who is dead or near death to determine if
the patient could be a prospective donor.
Pursuant
to federal law, when a donor or a patient who could be a prospective donor is
dead or near death, a procurement organization, or a designee, must be notified.
The organization begins to develop a medical and social history to determine
whether the dying or deceased individual’s body might be medically suitable for
donation. If the body of a dying or deceased person might be medically suitable
for donation, the procurement organization checks for evidence of a donation,
if not otherwise known, and seeks consent to donation from authorized persons,
if necessary. In the case of an organ, the organ procurement organization
obtains from the Organ Procurement and Transplantation Network (“OPTN”) a
prioritized list of potential recipients from the national organ waiting list
and takes the necessary steps to see that the organ finds its way to the appropriate
recipient. If eye or tissue is donated, the appropriate procurement organization
procures the eye or tissue and takes the necessary steps to screen, test,
process, store, or distribute them as required for transplantation, therapy,
research, or education. All must be done expeditiously.
Recent
technological innovations have increased the types of organs that can be
transplanted, the demand for organs, and the range of individuals who can
donate or receive an organ, thereby increasing the number of organs available
each year and the number of transplantations that occur each year. Nonetheless,
the number of deaths for lack of available organs also has increased. While the
Commissioners are under no illusion that any anatomical gift act can fully satisfy
the need for organs, any change that could increase the supply of organs and
thus save lies is an improvement.
Transplantation
occurs across state boundaries and requires speed and efficiency if the organ
is to be successfully transplanted into a recipient. There simply is no time
for researching and conforming to variations of the laws among the states.
Thus, uniformity of state law is highly desirable. Furthermore, the decision to
be a donor is a highly personal decision of great generosity and deserves the
highest respect from the law. Because current state anatomical gift laws are
out of harmony with both federal procurement and allocation policies and do not
fully respect the autonomy interests of donors, there is a need to harmonize
state law with federal policy as well as to improve the manner in which
anatomical gifts can be made and respected.
Summary of the Changes in the Revised Act
This
revision retains the basic policy of the 1968 and 1987 anatomical gift acts by
retaining and strengthening the “opt-in” system that honors the free choice of
an individual to donate the individual’s organ (a process known in the organ
transplant community as “first person consent” or “donor designation”). This
revision also preserves the right of other persons to make an anatomical gift
of a decedent’s organs if the decedent had not made a gift during life. And, it
strengthens the right of an individual not to donate the individual’s organs by
signing a refusal that also bars others from making a gift of the individual’s
organs after the individual’s death. This revision:
1.
Honors the choice of an individual to be or not to be a donor and strengthens
the language barring others from overriding a donor’s decision to make an
anatomical gift (Section 8);
2.
Facilitates donations by expanding the list of those who may make an anatomical
gift for another individual during that individual’s lifetime to include
health-care agents and, under certain circumstances, parents or guardians
(Section 4);
3.
Empowers a minor eligible under other law to apply for a driver’s license to be
a donor (Section 4);
4.
Facilitates donations from a deceased individual who made no lifetime choice by
adding to the list of persons who can make a gift of the deceased individual’s body
or parts the following persons: the person who was acting as the decedent’s
agent under a power of attorney for health care at the time of the decedent’s
death, the decedent’s adult grandchildren, and an adult who exhibited special
care and concern for the decedent (Section 9) and defines the meaning of “reasonably
available” which is relevant to who can make an anatomical gift of a decedent’s
body or parts (Section 2(23));
5.
Permits an anatomical gift by any member of a class where there is more than
one person in the class so long as no objections by other class members are
known and, if an objection is known, permits a majority of the members of the
class who are reasonably available to make the gift without having to take
account of a known objection by any class member who is not reasonably
available (Section 9);
6.
Creates numerous default rules for the interpretation of a document of gift
that lacks specificity regarding either the persons to receive the gift or the
purposes of the gift or both (Section 11);
7.
Encourages and establishes standards for donor registries (Section 20);
8.
Enables procurement organizations to gain access to documents of gifts in donor
registries, medical records, and the records of a state motor vehicle
department (Sections 14 and 20);
9.
Resolves the tension between a health-care directive requesting the withholding
or withdrawal of life support systems and anatomical gifts by permitting
measures necessary to ensure the medical suitability of organs for intended
transplantation or therapy to be administered (Sections 14 and 21);
10.
Clarifies and expands the rules relating to cooperation and coordination
between procurement organizations and coroners or medical examiners (Sections
22 and 23);
11.
Recognizes anatomical gifts made under the laws of other jurisdictions (Section
19); and
12.
Updates the [act] to allow for electronic records and signatures (Section 25).
In
addition, Section 2 provides a number of new definitions that are used in the
substantive provisions of the [act] to clarify and expand the opportunities for
anatomical gifts. These include: adult, agent, custodian, disinterested
witness, donee, donor registry, driver’s license, eye bank, guardian, know,
license, minor, organ procurement organization, parent, prospective donor,
reasonably available, recipient, record, sign, tissue, tissue bank, and
transplant hospital.
Section
4 authorizes individuals to make anatomical gifts of their bodies or parts. It
also permits certain persons, other than donors, to make an anatomical gift on
behalf of a donor during the donor’s lifetime. The expanded list includes
agents acting under a health-care power of attorney or other record, parents of
unemancipated minors, and guardians. The section also recognizes that it is
appropriate that minors who can apply for a driver’s license be empowered to
make anatomical gifts, but, under Section 8(g), either parent can revoke the
gift if the minor dies under the age of 18.
Section
5 recognizes that, since the adoption of the previous versions of this [act],
some states and many private organizations have created donor registries for
the purpose of making anatomical gifts. Thus, in addition to evidencing a gift
on a donor card or driver’s license, this [act] allows for the making of
anatomical gifts on donor registries. It also permits gifts to be made on
state-issued identification cards and, under limited circumstances, to be made
orally. Except for oral gifts, there is no witnessing requirement to make an
anatomical gift.
Section
6 permits anatomical gifts to be amended or revoked by the execution of a
later-executed record or by inconsistent documents of gifts. It also permits
revocation by destruction of a document of gift and, under limited
circumstances, permits oral revocations.
Section
7 permits an individual to sign a refusal that bars all other persons from
making an anatomical gift of the individual’s body or parts. A refusal
generally can be made by a signed record, a will, or, under limited
circumstances, orally. By permitting refusals, this [act] recognizes the
autonomy interest of an individual either to be or not to be a donor. The
section also recognizes that a refusal can be revoked.
Section
8 substantially strengthens the respect due a decision to make an anatomical
gift. While the 1987 Act provided that a donor’s anatomical gift was
irrevocable (except by the donor), until quite recently it had been a common
practice for procurement organizations to seek affirmation of the gift from the
donor’s family. This could result in unnecessary delays in the recovery of
organs as well as a reversal of a donor’s donation decision. Section 8
intentionally disempowers families from making or revoking anatomical gifts in
contravention of a donor’s wishes. Thus, under the strengthened language of
this [act], if a donor had made an anatomical gift, there is no reason to seek
consent from the donor’s family as they have no right to give it legally. See Section 8(a). Of course, that would
not bar, nor should it bar, a procurement organization from advising the
donor’s family of the donor’s express wishes, but that conversation should
focus more on what procedures will be followed to carry out the donor’s wishes
and on answering a family’s questions about the process rather than on seeking
approval of the donation. A limited exception applies if the donor is a minor
at the time of death. In this case, either parent may amend or revoke the
donor’s anatomical gift. See Section
8(g).
Section
8 also recognizes that some decisions of a donor are inherently ambiguous,
making it appropriate to adopt rules that favor the making of anatomical gifts.
For example, a donor’s revocation of a gift of a part is not to be construed as
a refusal for others to make gifts of other parts. Likewise, a donor’s gift of
one part is not to be construed as a refusal that would bar others from making
gifts of other parts absent an express, contrary intent.
Section
9 sets forth a prioritized list of classes of persons who can make an
anatomical gift of a decedent’s body or part if the decedent was neither a
donor nor had signed a refusal. The list is more expansive than under previous
versions of this [act]. It includes persons acting as agents at the decedent’s
death, adult grandchildren, and close friends.
Section
10 deals with the manner of making, amending, or revoking an anatomical gift
following the decedent’s death.
Section
11 deals with the passing of parts to named persons and more generally to eye
banks, tissue banks, and organ procurement organizations. In part, the section
is designed to harmonize this [act] with federal law, particularly with respect
to organs donated for transplantation or therapy. The National Organ Transplant
Act created the Organ Procurement and Transplantation Network (“OPTN”) to
facilitate the nationwide, equitable distribution of organs. Currently, United
Network Organ Sharing (“UNOS”) operates the OPTN under contract with the U.S.
Department of Health and Human Services. When an organ donor dies, the donor’s
organs, barring the rare instance of a donation to a named individual, are recovered
by the organ procurement organization for the service area in which the donor
dies, as custodian of the organs, to be allocated by it either locally,
regionally, or nationally in accordance with allocation policies established by
the OPTN.
Section
11 includes two important improvements to previous versions of this [act].
First, it creates a priority for transplantation or therapy over research or
education when an anatomical gift is made for all four purposes in a document
of gift that fails to establish a priority.
Second,
it specifies the person to whom a part passes when the document of gift merely
expresses a “general intent” to be an “organ donor.” This type of general
designation is common on a driver’s license. Under Section 11(f) a general
statement of intent to be a donor results only in an anatomical gift of the
donor’s eyes, tissues, and organs (not the whole body) for transplantation or
therapy. Since a general statement of intent to be an organ donor does not
result in the making of an anatomical gift of the whole body, or any part, for
research or education, more specific language is required to make such a gift.
Section
11(b) provides that, if an anatomical gift of the decedent’s body or parts does
not pass to a named person designated in a document of gift, it passes to a
procurement organization typically for transplantation or therapy and possibly
for research or education. Custody of a body or part that is the subject of an
anatomical gift that cannot be used for any intended purpose passes to the
“person under obligation to dispose of the body or parts.” See Section 11(i).
Section
11(j) prohibits a person from accepting an anatomical gift if the person knows
that the gift was not validly made. For this purpose, if a person knows that an
anatomical gift was made on a document of gift, the person is deemed to know of
a refusal to make a gift if the refusal is on the same document of gift.
Lastly,
Section 11(k) clarifies that nothing in this [act] affects the allocation of
organs for transplantation or therapy except to the extent there has been a
gift to a named recipient. See
Section 11(a)(2). The allocation of organs is administered exclusively under
policies of the Organ Procurement and Transplantation Network.
In
part, Section 14 has been redrafted to accord with controlling federal law when
applicable. The federal rules require hospitals to notify an organ procurement
organization or third party designated by the organ procurement organization of
an individual whose death is imminent or who has died in the hospital to
increase donation opportunity, and thus, transplantation. See 42 CFR § 482.45 (Medicare and Medicaid Programs: Conditions of
Participation: Identification of Potential Organ, Tissue, and Eye Donors and
Transplant Hospitals’ Provision of Transplant-Related Data). The right of the
procurement organization to inspect a patient’s medical records in Section
14(e) does not violate HIPAA. See 45
CFR § 164.512(h) (“A covered entity may use or disclose protected health
information to organ procurement organizations or other entities engaged in the
procurement, banking, or transplantation of cadaveric organs, eyes, or tissue
for the purpose of facilitating organ, eye, or tissue donation and
transplantation”). Section 14(c) permits measures necessary to ensure the
medical suitability of parts to be administered to a patient who is being
evaluated to determine whether the patient has organs that are medically
suitable for transplantation.
Section
17 and Section 18 deal with liability and immunity, respectively. (Section 16,
dealing with the sale of parts, also provides for potential liabilities but is
essentially the same as prior law). Section 17 includes a new provision
establishing criminal sanctions for falsifying the making, amending, or
revoking of an anatomical gift. Section 18, in substance, is the same as the
1987 Act providing immunity for “good faith” efforts to comply with this [act].
However, while the [act] contains no provisions relating to bad faith it is important
to note that other laws of the state and federal governments may provide for
further remedies and sanctions for bad faith, including those under regulatory
rules, licensing requirements, Unfair and Deceptive Practices acts, and the common
law.
Section
18(c) provides that in determining whether an individual has a right to make an
anatomical gift under Section 9, a person, such as an organ procurement
organization, may rely on the individual’s representation regarding the
individual’s relationship to the donor or prospective donor.
Section
19 sets forth rules relating to the validity of documents of gift executed
outside of the state while providing that any document of gift shall be
interpreted in accordance with the laws of the state.
Section
20 authorizes an appropriate state agency to establish or contract for the
establishment of a donor registry. It also provides that a registry can be
established without a state contract. While this [act] does not specify in
great detail what could or should be on a donor registry, it does mandate
minimum requirements for all registries. First, the registry must provide a
database that allows a donor or other person authorized to make an anatomical
gift to include in the registry a statement or symbol that the donor has made a
gift. Second, at or near the death of a donor or prospective donor, the
registry must be accessible to all procurement organizations to obtain
information relevant to determine whether the donor or prospective donor has
made, amended, or revoked an anatomical gift. Lastly, the registry must be
accessible on a twenty four hour, seven day a week basis.
Section
21 creates a default rule to adjust the tension that might exist between
preserving organs to assure their medical suitability for transplantation or
therapy and the expression of intent by a prospective donor in either a
declaration or advance health-care directive not to have life prolonged by use
of life support systems. The default rule under this [act] is that measures necessary
to ensure the medical suitability of an organ for transplantation or therapy
may not be withheld or withdrawn from the prospective donor. A prospective
donor could expressly provide otherwise in the declaration or advance
health-care directive.
Sections
22 and 23 represent a complete revision of the relationship of the [coroner]
[medical examiner] to the anatomical gift process. Previous versions of this
[act] permitted the [coroner] [medical examiner], under limited circumstances,
to make anatomical gifts of the eyes of a decedent in the [coroner’s] [medical
examiner’s] possession. In light of a series of Section 1983 lawsuits in which
the [coroner’s] [medical examiner’s] actions were held to violate the property
rights of surviving family members, see,
e.g., Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991), the
authority of the [coroner] [medical examiner] to make anatomical gifts was
deleted from this [act]. Parts, with the rare exception discussed in the
comments to Section 9, can be recovered for the purpose of transplantation,
therapy, research, or education from a decedent whose body is under the
jurisdiction of the [coroner] [medical examiner] only if there was an
anatomical gift of those parts under Section 5 or Section 10 of this [act].
This
[act] includes a series of new provisions in Sections 22 and 23 relating to the
relationship between the [coroner] [medical examiner] and procurement
organizations. These provisions should encourage meaningful cooperation between
these groups in hopes of increasing the number of anatomical gifts.
Importantly, the section does not permit a [coroner] [medical examiner] to make
an anatomical gift.
REVISED UNIFORM ANATOMICAL GIFT ACT
SECTION 1. SHORT TITLE. This
[act] may be cited as the Revised Uniform Anatomical Gift Act.
SECTION 2. DEFINITIONS. In this [act]:
(1) “Adult” means an individual who
is at least [18] years of age.
(2) “Agent” means an individual:
(A) authorized to make
health-care decisions on the principal’s behalf by a power of attorney for
health care; or
(B) expressly authorized
to make an anatomical gift on the principal’s behalf by any other record signed
by the principal.
(3) “Anatomical gift” means a
donation of all or part of a human body to take effect after the donor’s death
for the purpose of transplantation, therapy, research, or education.
(4) “Decedent” means a deceased
individual whose body or part is or may be the source of an anatomical gift.
The term includes a stillborn infant and, subject to restrictions imposed by
law other than this [act], a fetus.
(5) “Disinterested witness” means a
witness other than the spouse, child, parent, sibling, grandchild, grandparent,
or guardian of the individual who makes, amends, revokes, or refuses to make an
anatomical gift, or another adult who exhibited special care and concern for
the individual. The term does not include a person to which an anatomical gift
could pass under Section 11.
(6) “Document of gift” means a donor
card or other record used to make an anatomical gift. The term includes a
statement or symbol on a driver’s license, identification card, or donor
registry.
(7) “Donor” means an individual
whose body or part is the subject of an anatomical gift.
(8) “Donor registry” means a
database that contains records of anatomical gifts and amendments to or
revocations of anatomical gifts.
(9) “Driver’s license” means a
license or permit issued by the [state department of motor vehicles] to operate
a vehicle, whether or not conditions are attached to the license or permit.
(10) “Eye bank” means a person that
is licensed, accredited, or regulated under federal or state law to engage in
the recovery, screening, testing, processing, storage, or distribution of human
eyes or portions of human eyes.
(11) “Guardian” means a person
appointed by a court to make decisions regarding the support, care, education,
health, or welfare of an individual. The term does not include a guardian ad
litem.
(12) “Hospital” means a facility
licensed as a hospital under the law of any state or a facility operated as a
hospital by the United
States, a state, or a subdivision of a
state.
(13) “Identification card” means an
identification card issued by the [state department of motor vehicles].
(14) “Know” means to have actual
knowledge.
(15) “Minor” means an individual who
is under [18] years of age.
(16) “Organ procurement
organization” means a person designated by the Secretary of the United States
Department of Health and Human Services as an organ procurement organization.
(17) “Parent” means a parent whose
parental rights have not been terminated.
(18) “Part” means an organ, an eye,
or tissue of a human being. The term does not include the whole body.
(19) “Person” means an individual,
corporation, business trust, estate, trust, partnership, limited liability
company, association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity.
(20) “Physician” means an individual
authorized to practice medicine or osteopathy under the law of any state.
(21) “Procurement organization”
means an eye bank, organ procurement organization, or tissue bank.
(22) “Prospective donor” means an
individual who is dead or near death and has been determined by a procurement
organization to have a part that could be medically suitable for transplantation,
therapy, research, or education. The term does not include an individual who
has made a refusal.
(23) “Reasonably available” means
able to be contacted by a procurement organization without undue effort and
willing and able to act in a timely manner consistent with existing medical
criteria necessary for the making of an anatomical gift.
(24) “Recipient” means an individual
into whose body a decedent’s part has been or is intended to be transplanted.
(25) “Record” means information that
is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(26) “Refusal” means a record
created under Section 7 that expressly states an intent to bar other persons
from making an anatomical gift of an individual’s body or part.
(27) “Sign” means, with the present
intent to authenticate or adopt a record:
(A) to execute or adopt
a tangible symbol; or
(B) to attach to or
logically associate with the record an electronic symbol, sound, or process.
(28) “State” means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the United States.
(29) “Technician” means an
individual determined to be qualified to remove or process parts by an
appropriate organization that is licensed, accredited, or regulated under
federal or state law. The term includes an enucleator.
(30) “Tissue” means a portion of the
human body other than an organ or an eye. The term does not include blood
unless the blood is donated for the purpose of research or education.
(31) “Tissue bank” means a person
that is licensed, accredited, or regulated under federal or state law to engage
in the recovery, screening, testing, processing, storage, or distribution of
tissue.
(32) “Transplant hospital” means a
hospital that furnishes organ transplants and other medical and surgical
specialty services required for the care of transplant patients.
Legislative
note: If this state does not
license “hospitals”, the definition of “hospital” should include a reference to
the facility or facilities with equivalent functions by an additional sentence such
as the following: “The term includes an acute care facility.”
Comment
“Agent”
(paragraph (2)) is an individual who, under certain circumstances, can make an
anatomical gift on the principal’s behalf.
An agent is empowered to make a gift if the agent is authorized by a
power of attorney for health care to make health-care decisions on the
principal’s behalf. Thus, this [act],
independent of any other law, empowers an agent acting under a power of
attorney for health care to make an anatomical gift on the principal’s
behalf. It is unnecessary that states
adopting this [act] amend their power of attorney for health care statutes to
specifically empower agents to make anatomical gifts on behalf of
principals. On the other hand, a state
may choose to amend its health-care power of attorney statute in order that all
of the agent’s powers, including the power to make an anatomical gift, are
located and visible in one place setting forth the powers of a health-care
agent. Even though this [act] enables an
agent acting under a power of attorney for health care to make an anatomical
gift, if the principal prohibits the agent from making an anatomical gift of
the principal’s parts, the agent would have no authority to do so. See Section 4(2).
An
agent also may be designated by a record, other than a power of attorney for
health care, which authorizes the agent to make an anatomical gift. This would permit a principal to empower one
individual to make health-care decisions and another individual to make anatomical
gift decisions. In light of the
definition of record, this authority could be expressed in a financial power of
attorney.
“Anatomical
gift” (paragraph (3)) means a gift that takes effect after the donor’s
death. Thus, an “anatomical gift” does
not include a gift of an organ from a living donor to a living recipient.
“Decedent”
(paragraph (4)) is defined as it was under prior versions of this [act] to
include both stillborns and fetuses. A
fetus, by definition, is not an embryo and nothing in this [act] allows for an
anatomical gift of an embryo. Under
other law fetuses can be used for research.
See, 42 U.S. C. § 289g-1 & 289g-2; 42
CFR § 46.201.
By
including stillborns and fetuses in the definition of “decedent,” this [act]
assures that stillborns and fetuses continue to receive the statutory
protections conferred by this [act]; namely that their bodies or parts cannot
be used for transplantation, therapy, research, or education without the same
appropriate consents afforded other prospective donors. The definition of decedent does not broaden
the scope of available transplant or research subjects or techniques. Although the needs of research and
transplantation may have changed and expanded since the original 1968 Act was
drafted, the scope of this [act] with regard to the definition of those who may
be a source of an anatomical gift has neither changed nor expanded. By its terms, this [act] is silent on the
issue of the use or donation of blastocytes and embryos, neither authorizing nor
prohibiting their donation or use.
Similarly, this [act] is silent on the nature of the research to be
performed and provides no authorization or prohibition for somatic cell nuclear
transfer or other specific research techniques.
The complicated legal, scientific, moral, and ethical issues which may
arise in the consideration of such research is, or should be, dealt with in
separate statutes and policies. Thus,
nothing in this [act] affects embryonic stem cell research. However, for jurisdictions that might prefer
a more restrictive definition in the second sentence of the definition of
“decedent,” the following language is suggested: “The term does not include a
blastocyst, embryo, or fetus that is the subject of an induced abortion.”
“Disinterested
witness” (paragraph (5)) means a witness other than those listed in the
paragraph. Under Sections 5 and 6
anatomical gifts may be made or revoked.
Under Section 7 a person may also make or revoke a refusal. In most circumstances these acts must be evidenced
by a record. However, in limited
circumstances they can be evidenced by oral statements to at least two adult
witnesses. In those circumstances at
least one of the witnesses must be a disinterested witness.
“Document
of gift” (paragraph (6)) includes a donor card or any other record. It also includes a donor registry (paragraph
(8)), a driver’s license (paragraph (9)), and an identification card (paragraph
(13)). While a donor card is a record,
the reference to donor cards had been specifically retained because of the wide
acceptance of that concept in our culture.
Prior versions of this [act] also expressly referred to a will in the
definition of a document of gift. The
omission in this [act] of a will in the definition of a document of gift does
not mean a will is not a document of gift.
Rather, the “will” is subsumed in the word “record.” Where there is a need in this [act] to
specially treat wills as documents of gift, the will is singled out from other
documents of gift.
A
statement or symbol on a driver’s license or donor registry is a document of
gift; it is not merely an expression of intent to make a gift. Therefore, where there is such a statement or
symbol, no other document of gift is necessary to evidence the making of an
anatomical gift. Potential donors
utilizing records other than a driver’s license or a donor registry to make an
anatomical gift should be strongly encouraged to make their gifts on a driver’s
license or donor registry, as gifts on a license or registry are more likely to
be discovered when the donor is dead or near death.
Under
Section 5(b) a donor can make an anatomical gift by authorizing the persons who
maintains a donor registry to include on the registry a statement or symbol
that the donor has made an anatomical gift.
By adding a “donor registry” as a device for making an anatomical gift,
this [act] recognizes the increasing use of donor registries to make anatomical
gifts. The use of donor registries was
not contemplated when the previous versions of this act were adopted. Today, however, they have assumed increased
importance and in time may come to dominate how anatomical gifts are made. While the format of donor registries differ,
generally they allow for the making of an anatomical gift of one or more parts
and permit that gift to be made over the internet. No known donor registry provides for a
refusal to make an anatomical gift, and this [act] does not require that they
do so. The person who maintains a donor
registry may, if it chooses, follow up an electronic registration by sending
the donor a card to sign. However, that
is not legally required by this [act] to make an effective anatomical gift.
“Donor”
(paragraph (7)) means the individual whose body or part is the subject of an
anatomical gift. Thus, an individual who
signs a donor card or authorizes a symbol to be placed on a driver’s license or
donor registry evidencing an anatomical gift is a donor even though the part
donated will not be removed from the donor until the donor dies. Likewise, if the family of a decedent who did
not make an anatomical gift during life donates a part of the decedent, that
decedent is a donor. Thus, “donor”
refers to a living individual who made an anatomical gift or on whose behalf an
anatomical gift was made to take effect in the future. The term also includes a decedent whose body
or part is the subject of an anatomical gift.
Anatomical gifts by a donor, as well as amendments, revocations, and
refusals, may preclude the ability of others to make or revoke anatomical gifts
on behalf of the donor. See Sections 7 and 8.
“Donor
registry” (paragraph (8)) means a database containing records of anatomical
gifts. The concept of the registry is
new to this version of the anatomical gift act.
Many states now have donor registries.
Most of them are operated by private organizations, such as a
procurement organization (paragraph (21)) while some are operated by the
state. Section 20 of this [act]
authorizes states to either establish or contract for the establishment of a
donor registry. Donor registries, like
driver’s licenses, are very effective devices to record the making of an
anatomical gift. The making of an
anatomical gift by these devices assures that the evidence of a gift is always
available, unlike the traditional donor card which can often be lost. Furthermore, they are easily accessible by
procurement organizations.
“Driver’s
license” (paragraph (9)) includes both driver’s licenses for which adults
qualify, as well as licenses or permits issued to minors whether denoted
“temporary permit,” “permit,” or “learner’s permit,” or something else. State laws vary widely on how young an
individual under the age of 18 can be to obtain a driver’s license. For example, it is not uncommon for a learner’s
permit to be issued to a 16-year-old individual. And, in some states licenses or permits can
be issued to 14-year-olds for the purpose of driving only certain types of
motorized vehicles, such as farm equipment.
The definition of “driver’s license” is broad enough to include all of
these. Furthermore, under the definition, a condition, such as that the holder
must be accompanied by an adult or the holder can drive only certain types of
vehicles, does not prevent the license or permit from being considered a
“driver’s license” under this [act].
Under
Section 4 if a minor is of an age that the minor would be entitled to obtain a
driver’s license, the minor can make an anatomical gift even though the minor
does not actually apply for a license.
Thus, a minor who could apply for a permit could make an anatomical gift
by another means, such as a donor card or donor registry. Furthermore, if a minor acquires a license on
which the minor has made an anatomical gift, the minor would not have to
re-apply for a driver’s license when attaining age 18 for the gift to be
effective.
This
[act], however, does not require that licenses provide space for a notation
that the holder is a donor. That
mandate, if it exists, is left to other law.
“Guardian”
(paragraph (11)) means any person judicially appointed to make decisions for
the support, care, education, health, or welfare of the ward. The intent is to exclude guardians ad litem
or temporary guardians who would not have an expected long-term relationship to
the ward.
“Identification
card” (paragraph (13)) means an identification card issued by the [state
department of motor vehicles]. Some
individuals desire an identification card rather than a driver’s license. These individuals could make an anatomical
gift by authorizing a statement or symbol to be put on the card. While this [act] does not require that space
be provided on the card for that purpose, it is anticipated that states will
design these cards in ways to permit the making of an anatomical gift.
“Know”
(paragraph (14)) means actual knowledge.
Thus, it does not mean imputed knowledge. When imputed knowledge is relevant under any
section of this [act], the section expressly so provides. See,
e.g., section 11(j).
“Parent”
(paragraph (17)) means a parent whose parental rights have not been
terminated. An adopting parent is a
parent. On the other hand, a stepparent
or judicially appointed guardian not otherwise by law designated as the child’s
parent is not a parent.
“Part”
(paragraph (18)) means organ, eye, or tissue.
While this definition is shorter than the definition in the 1987 Act, it
is functionally the same because all parts of the human body, including bones
and fluids, are encompassed within the definition. The definition excludes the whole body.
“Prospective
donor” (paragraph (22)) means an individual who is dead or near death and has
been determined to have one or more parts that could be medically suitable for
transplantation, therapy, research, or education. The term includes an individual who made an
anatomical gift during life and, therefore, is a donor. The term also includes a non-donor individual
at or near the time of death with parts that are medically suitable for
donation who could become a donor if the individual’s family made an anatomical
gift under Section 9. The term does not
include an individual who made a refusal as the refusal bars other persons from
making an anatomical gift on that individual’s behalf.
“Reasonably
available” (paragraph (23)) is defined in a manner similar to that in the
Uniform Health-Care Decisions Act. A
decision to make an anatomical gift, particularly of an organ, is extremely
time sensitive. Life-saving organs may
be forfeited if persons with a priority to make an anatomical gift under
Section 9 cannot be located. Physical
presence, however, is not required to be “reasonably available.” An individual is “reasonably available” if
the individual can be contacted without undue effort. Also, the concept assumes that an individual
is willing to act in a timely manner to permit the successful recovery of
organs. An individual who is unwilling
to make a decision to either donate or refuse to donate in a timely manner is
not considered to be “reasonably available.”
“Tissue”
(paragraph (30)), as defined in this act, includes bone. The definition excludes blood unless donated
for research or education. Blood is not
obtained from deceased persons for purposes of transplantation or therapy. Furthermore, blood banks are not treated as
tissue banks under other law.
Accordingly, it is appropriate to exclude blood from the operation of
this [act] except when donated for purposes of research or education.
SECTION 3. APPLICABILITY. This [act] applies to an anatomical gift or
amendment to, revocation of, or refusal to make an anatomical gift, whenever
made.
SECTION 4. WHO MAY MAKE
ANATOMICAL GIFT BEFORE DONOR’S DEATH. Subject to Section 8, an
anatomical gift of a donor’s body or part may be made during the life of the
donor for the purpose of transplantation, therapy, research, or education in
the manner provided in Section 5 by:
(1) the donor, if the donor is an
adult or if the donor is a minor and is:
(A) emancipated; or
(B) authorized under
state law to apply for a driver’s license because the donor is at least [insert
the youngest age at which an individual may apply for any type of driver’s
license] years of age;
(2) an agent of the donor, unless
the power of attorney for health care or other record prohibits the agent from
making an anatomical gift;
(3) a parent of the donor, if the donor is an unemancipated minor; or
(4) the donor’s
guardian.
Comment
Structurally,
this [act] includes within Sections 4 through 8 provisions that were included
in Section 2 of the 1987 Act. Section 4
relates to who may make an anatomical gift before a donor dies, Section 5 to
the manner in which an anatomical gift may be made, Section 6 to the amending
and revoking of an anatomical gift, Section 7 to the refusal to make an
anatomical gift, and Section 8 to the effect of gifts, amendments, and
revocations on the ability of others to make an anatomical gift.
Like
the predecessor acts, this [act] provides that an individual may make an
anatomical gift of the individual’s body or part if the individual is an
adult. This [act], however, expands
prior law in a number of ways.
In
most states a minor, under limited circumstances, can apply for a driver’s
license. The minor might wish to be a
donor. As a policy matter, if the minor
is old enough to drive a vehicle the minor should be old enough to make an
anatomical gift. Thus, this [act]
provides that a minor who could obtain a driver’s license is empowered to make
an anatomical gift whether on a driver’s license or other document of gift. On the other hand, if the minor donor dies
under the age of 18, it seems appropriate that the minor’s parents should be
able to revoke the gift. See Section
8(g). Because the minor’s parents cannot
revoke the anatomical gift if the minor donor later dies over the age of 18,
there is no necessity under this [act] for the minor donor to confirm that
anatomical gift after reaching 18. Thus,
in a state that provides that a license issued to a minor is good for five years
and the minor applies for the license at age 17, the minor can make an
anatomical gift on the driver’s license and need not reaffirm the gift for
another five years. Furthermore, once
the minor reaches age 18, the minor’s parents cannot revoke the gift.
Section
4 expands prior law in other important respects. It permits anatomical gifts by an emancipated
minor. The act does not define
“emancipated minor,” although a common example would be a married minor. State laws vary regarding the definition of
an emancipated minor. By not defining
the phrase in this [act], the phrase is effectively defined by other law of the
state.
Section
4 expressly empowers an anatomical gift to be made on behalf of an individual
by that individual’s agent or a parent, if that individual is an unemancipated
minor, or by a guardian.
An
anatomical gift by an agent, parent, or guardian remains in effect until such
time as amended or revoked by an agent, parent, or guardian, or by the donor on
whose behalf the gift was made. For
example, if a parent makes an anatomical gift for a minor and the parent does
not revoke that gift before the minor reaches age 18 or becomes emancipated,
the anatomical gift remains in effect until such time as it is altered by the
donor or by the donor’s agent or guardian.
While agents, parents, and guardians can make an anatomical gift, they
can not sign a refusal under Section 7 on their principal’s or ward’s
behalf. A refusal can only be made by
that individual whose part or body might otherwise have been the subject of an
anatomical gift.
As
noted in the comments to the definitions, an agent acting under a power of
attorney for health care is authorized merely by that designation to make an
anatomical gift on the principal’s behalf.
If the principal does not wish to authorize the agent acting under a
power of attorney for health care to make that decision, the power must include
language to expressly negate that authority.
See Section 4(2). Conversely, if the agent is acting under
another record, such as a financial power of attorney, the agent would be
empowered to make an anatomical gift only if that authority was expressly
conferred in the record. See Section 2(2)(B).
Section
4 specifically delineates the four purposes for which an anatomical gift may be
made, namely, transplantation, therapy, research or education. The terms
“transplantation”, “therapy”, “research” and “education” are not defined in
this [act]. Rather, they are defined by their common usage in the communities
to which they apply. In general terms, transplantation refers to the removal
and grafting of one individual’s body part into the body of another individual.
Research is a process of testing and observing, the goal of which is to obtain
generalizable knowledge, while therapy involves the processing and use of a
donated part to develop and provide amelioration or treatment for a disease or
condition. Education posits the use of the whole body or parts to teach medical
professionals and others about human anatomy and its characteristics.
(a) A donor may make an anatomical gift:
(1) by authorizing a
statement or symbol indicating that the donor has made an anatomical gift to be
imprinted on the donor’s driver’s license or identification card;
(2) in a will;
(3) during a terminal
illness or injury of the donor, by any form of communication addressed to at
least two adults, at least one of whom is a disinterested witness; or
(4) as provided in
subsection (b).
(b) A donor or other person
authorized to make an anatomical gift under Section 4 may make a gift by a
donor card or other record signed by the donor or other person making the gift
or by authorizing that a statement or symbol indicating that the donor has made
an anatomical gift be included on a donor registry. If the donor or other
person is physically unable to sign a record, the record may be signed by
another individual at the direction of the donor or other person and must:
(1) be witnessed by at
least two adults, at least one of whom is a disinterested witness, who have
signed at the request of the donor or the other person; and
(2) state that it has
been signed and witnessed as provided in paragraph (1).
(c) Revocation, suspension,
expiration, or cancellation of a driver’s license or identification card upon
which an anatomical gift is indicated does not invalidate the gift.
(d) An anatomical gift made by will
takes effect upon the donor’s death whether or not the will is probated.
Invalidation of the will after the donor’s death does not invalidate the gift.
Comment
The execution
formalities associated with the making of an anatomical gift generally remain
the same as under the 1987 Act. However, in addition to the making of an
anatomical gift by a donor card, will, or state-issued driver’s license, an
anatomical gift can also be made on a state-issued identification card or a
donor registry.
Section
5(a) provides that a donor can make an anatomical gift by authorizing a
statement or symbol to be imprinted on the donor’s driver’s license, in the
donor’s will, or during a terminal illness or injury, orally to at least two
adult witnesses, at least one of whom is disinterested. Only a donor can make a
gift under Section 5(a). A Section 5(a) gift cannot be made by an agent,
parent, or guardian.
Under
Section 5(a)(2) an anatomical gift can be made in a donor’s will. The section
is silent regarding who must sign the will. Statutes of Wills generally require
wills to be signed by the testator, and under certain circumstances, permit
wills to be signed by another individual acting on behalf of the testator at
the testator’s request and often in the testator’s presence. See Uniform Probate Code § 2-502. Thus,
an anatomical gift can be made by the will of a donor whether the will is
signed by a donor or a third party acting at the donor’s request.
Typically
an anatomical gift of a part for transplantation or therapy is not made by a
will. In fact, donors are ill-advised to make an anatomical gift by will as the
terms of the will may not be known in sufficient time to allow for successful
recovery of the gifted parts. Individuals who make an anatomical gift of their
parts in a will for transplantation or therapy should make their wishes known
by other means as well. On the other hand, some individuals donate their bodies
to medical science for research or education, and they may do so by a will.
Subsection (d) provides that, if an anatomical gift is made by will, it takes
effect at the donor’s death. The gift is valid even though the will is not
probated or is declared invalid. See
Section 5(d).
Subsection
(a)(3) permits an oral gift by a terminally ill or injured donor if the donor’s
communication is addressed to at least two adult witness, at least one of whom
is a disinterested witness. This subsection is new to anatomical gift acts. The
ability to make an oral gift parallels the ability to make oral revocations and
refusals.
Section
5(b) permits an anatomical gift by a signed donor card or other record. The
card or record can be signed by any person (donor, agent, parent, or guardian)
authorized to make an anatomical gift under Section 4. If the person making the
gift is physically unable to sign the card or record, the record can be signed
by another individual acting at the direction of the donor or other person
making the gift. In this case, the record must be witnessed by at least two
adult witnesses, at least one of whom is a disinterested witness. Furthermore,
the record must state that it was signed and witnessed at the request of the
donor or other person.
A
disinterested witness is a witness other than the spouse, child, parent,
sibling, grandchild, grandparent, or guardian, of the individual who makes,
amends, revokes, or refuses to make an anatomical gift, or another adult who
exhibited special care and concern for that individual. A disinterested witness
also does not include any person to whom an anatomical gift could pass under
Section 11. See Section 2(5). For
example, a terminally ill individual could make an anatomical gift by an oral
communication to two unrelated neighbors or to one unrelated neighbor and one
of the individual’s adult children, but not to the individual’s two adult
children.
Section
5(b) also permits any person (donor, agent, parent, or guardian) authorized to
make an anatomical gift under Section 4 to make that gift by authorizing that a
statement or symbol indicating that the donor has made a gift be included on a
donor registry. Donor registries were not contemplated by the prior versions of
this [act]. Since the promulgation of those versions, numerous donor registries
have been created under the auspices of states or private organizations. Over
time donor registries may become the primary device by which anatomical gifts
are made by donors. See Section 20
(creation of donor registry).
A
decision was made in drafting this [act] not to include a specific form in the
statute for the making of an anatomical gift. Rather, the drafting committee
concluded that suggested forms consistent with this [act] be included in these
comments. Three such forms follow:
DONOR
CARD
I wish to donate my
organs, eyes, and tissue. I give:
Any needed organs, eyes,
and tissue ONLY the following
organs, eyes, and
tissue:
______________________________________________________________________
Date: ______________________ Donor’s Signature
_________________
|
DONOR
CARD
|
|
I wish to donate my organs, eyes,
and tissue. I wish to give (complete either Section A, B, or C):
|
|
Subject of Gift:
|
|
Purpose
of Gift:
|
|
|
|
Transplantation
or
therapy
|
Research
or Education
|
Both
|
|
Section A
|
Yes No
|
|
|
|
|
ALL of my organs, eyes, and
tissue
|
|
|
|
|
|
|
|
|
|
|
|
Section B
|
|
|
|
|
|
My Organs
|
|
|
|
|
|
My Eyes
|
|
|
|
|
|
My Tissue
|
|
|
|
|
|
|
|
|
|
|
|
Section C
|
|
|
|
|
|
Special Instructions (If none
of the above apply), I wish to give ONLY:
________________________________________________________________________
Date: __________________ Donor’s
Signature: _________________
DONOR
CARD
|
I give, upon my death, the
following gifts for the purpose of (choose
whichever applies): [ ] only transplantation and therapy, [ ] only research and education, [ ] transplantation, therapy, research, or
education
For the purposes specified above,
I give:
[ ] ALL
needed organs, tissues, and eyes; or
(If you checked the box immediately
above, you should not check specific boxes below).
[ ] Organs
[ ] Tissues [
] Eyes
If none of the above applies, I
wish to give ONLY:
The following
organs and tissues:_____________________________________
|
Date:
____________________ Donor’s Signature: ______________________
|
SECTION 6. AMENDING OR REVOKING
ANATOMICAL GIFT BEFORE DONOR’S DEATH.
(a) Subject to Section 8, a donor or
other person authorized to make an anatomical gift under Section 4 may amend or
revoke an anatomical gift by:
(1) a record signed by:
(A) the
donor;
(B) the
other person; or
(C) subject
to subsection (b), another individual acting at the direction of the donor or
the other person if the donor or other person is physically unable to sign; or
(2) a later-executed
document of gift that amends or revokes a previous anatomical gift or portion
of an anatomical gift, either expressly or by inconsistency.
(b) A record signed pursuant to
subsection (a)(1)(C) must:
(1) be witnessed by at
least two adults, at least one of whom is a disinterested witness, who have
signed at the request of the donor or the other person; and
(2) state that it has
been signed and witnessed as provided in paragraph (1).
(c) Subject to Section 8, a donor or
other person authorized to make an anatomical gift under Section 4 may revoke
an anatomical gift by the destruction or cancellation of the document of gift,
or the portion of the document of gift used to make the gift, with the intent
to revoke the gift.
(d) A donor may amend or revoke an
anatomical gift that was not made in a will by any form of communication during
a terminal illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness.
(e) A donor who makes an anatomical
gift in a will may amend or revoke the gift in the manner provided for
amendment or revocation of wills or as provided in subsection (a).
Comment
Section
6 largely mirrors the provisions in the prior acts. It applies to the amendment
or revocation of an anatomical gift whether made by a donor or by another
person acting on behalf of the donor.
Under
Section 6(a)(1), an anatomical gift can be revoked or amended by a record
signed by the donor or the other person authorized to make an anatomical gift under
Section 4. If the donor or other person is physically unable to sign a record
amending or revoking an anatomical gift, the record may be signed by another
individual acting at the direction of the donor or other person so long as the
record is witnessed by at least two adult witness, at least one of whom is a
disinterested witness. In this case, the record must state that it was signed
and witnessed at the request of the donor or other person.
Subsection
(a)(2), borrowing from statutes dealing with the revocation of wills,
contemplates revocations or amendments made by a later-executed document of
gift either expressly or by inconsistency. For example, suppose a donor
executes a will bequeathing her entire body to Medical School A for research or
education. Later, the donor signs a document of gift donating a kidney for
transplantation. Since the later-executed document of gift is only inconsistent
with the prior document of gift to the extent of the donated kidney, the
donor’s kidney would, if medically suitable, pass to the appropriate
procurement organization, and the donor’s body without the kidney would pass to
Medical School A. See Section 11.
A
driver’s license that makes no provision for the making of an anatomical gift
is not a document of gift because a document of gift is defined to be a donor
card or other record “used to make an anatomical gift.” See Section 2(6). Therefore, a later-issued driver’s license that
is silent regarding the licensee’s intent to make an anatomical gift would not be
inconsistent with a prior driver’s license on which the donor had made an
anatomical gift. Thus, the gift on the prior license would still be effective.
For donors using a driver’s license to make an anatomical gift, however, it is
wise to always make the gift on the most current license as motor vehicle
departments may have expunged information on a previously issued license from
their electronic databases.
There
is no requirement under this [act] that documents of gift be dated. A “dating
requirement” was purposely omitted to avoid invalidating documents of gift
written without the advice of counsel that may not have included a date. That
purposeful omission could result in some proof issues if a question arises
whether one document of gift revokes another by inconsistency. There is little
evidence to suggest that this would be a problem, but should it arise, the
matter would have to be resolved by resort to any competent evidence. If the
evidence is not available, a presumption should arise that the document of gift
with the most comprehensive gift controls given the policy of this [act] to
favor the making of anatomical gifts.
Under
Section 6(c) an anatomical gift made by a document of gift also can be revoked
by destruction of the document of gift if the destruction is done with the
intent to revoke that gift. As a practical matter revocation by destruction is
not possible for anatomical gifts made on a donor registry. A donor wishing to
revoke anatomical gifts made on a donor registry should revise the registry. If
an anatomical gift was evidenced by a written document that was destroyed
inadvertently and cannot be found, there may be no effective Section 4
anatomical gift because no one may know of the anatomical gift. Inadvertent
destruction of donor cards is common. A card may be lost when the donor decides
to clean out a wallet or purse. Thus, donors are well advised to make their
wishes known on documents of gift with greater permanency, such as a driver’s
license or a donor registry, in order to reduce the risk of inadvertent
destruction.
The
ability to revoke an anatomical gift is subject to the limitations in Section
8. For example, if a donor makes an anatomical gift of a kidney, all other
persons are precluded from revoking that gift. Therefore, the donor’s
later-appointed guardian would not be empowered to revoke that anatomical gift
under Section 6.
Under
Section 6(d) an anatomical gift may also be amended or revoked by a donor with
a terminal illness or injury by any form of communication that is addressed to
at least two adult witnesses, at least one of whom must be a disinterested
witness. If the donor cannot communicate orally, acceptable forms of
communication, in addition to a record, could include a movement of the head or
eye in response to specific questions.
SECTION 7. REFUSAL TO MAKE
ANATOMICAL GIFT; EFFECT OF REFUSAL.
(a) An individual may refuse to make
an anatomical gift of the individual’s body or part by:
(1) a record signed by:
(A) the
individual; or
(B) subject
to subsection (b), another individual acting at the direction of the individual
if the individual is physically unable to sign;
(2) the individual’s
will, whether or not the will is admitted to probate or invalidated after the
individual’s death; or
(3) any form of
communication made by the individual during the individual’s terminal illness
or injury addressed to at least two adults, at least one of whom is a
disinterested witness.
(b) A record signed pursuant to
subsection (a)(1)(B) must:
(1) be witnessed by at
least two adults, at least one of whom is a disinterested witness, who have
signed at the request of the individual; and
(2) state that it has
been signed and witnessed as provided in paragraph (1).
(c) An individual who has made a refusal
may amend or revoke the refusal:
(1) in the manner
provided in subsection (a) for making a refusal;
(2) by subsequently
making an anatomical gift pursuant to Section 5 that is inconsistent with the
refusal; or
(3) by destroying or
canceling the record evidencing the refusal, or the portion of the record used
to make the refusal, with the intent to revoke the refusal.
(d) Except as otherwise provided in
Section 8(h), in the absence of an express, contrary indication by the
individual set forth in the refusal, an individual’s unrevoked refusal to make
an anatomical gift of the individual’s body or part bars all other persons from
making an anatomical gift of the individual’s body or part.
Comment
Section
7 honors the autonomy of an individual whose body or part might otherwise be
the subject of an anatomical gift by empowering the individual to make a
refusal. There is no age limitation for
an individual to sign a refusal. An individual of any age can do so. (However,
if a minor has made a refusal and dies under the age of 18, the refusal can be
revoked by the minor’s parents. See
Section 8(h)).
A
refusal can only be made by the individual whose parts are the subject of the
refusal. Thus, an individual’s agent, parent, or guardian cannot make a refusal
for the individual under Section 7 even though the agent, parent, or guardian
could have made a gift for the individual under Section 4.
Refusals
typically are made by a signed record. If the individual who wants to sign a
refusal cannot physically do so, the refusal can be signed by another
individual acting at the request of the individual. If the refusal is signed by
another individual acting at the request of the individual making the refusal,
the refusal must be witnessed by at least two adults, at least one of whom is a
disinterested witness. Furthermore, the record must state that it was signed
and witnessed at the request of the individual. See Section 7(a)(1) and (b).
A
refusal can also be made by the individual’s will whether or not the will is
admitted to probate or is later invalidated. Additionally, a refusal can be
made by any form of communication by a terminally ill or injured individual
addressed to at least two adults, at least one of whom is a disinterested
witness. See Section 7(a)(3).
Subsection
(c) provides for the amendment or revocation of a refusal. A refusal may be
revoked by a signed record. It can also be revoked by a later-made anatomical
gift that is inconsistent with the refusal. For example, suppose an individual
signs a refusal to be an organ donor under Section 7. Later that individual
signs a record stating only “I revoke the refusal.” At this point that
individual is neither a donor nor a refuser and upon the individual’s death, an
anatomical gift could be made by the person or persons listed in Section 9. On
the other hand, suppose the individual who had signed a refusal later executed
a document of gift donating “my eyes.” Here there is an anatomical gift of the
eyes and a refusal to be a donor of any other part. This would bar any person
from revoking the anatomical gift of the eyes or making an anatomical gift of
any other part. Similarly, suppose the individual had signed a refusal and
later obtained a driver’s license stating that the individual wanted to be an
“organ donor.” The driver’s license would revoke the refusal to the extent
inconsistent with the refusal, and there would be an anatomical gift of the
donor’s organs, eyes, and tissue. See
Section 11(f). Lastly, under limited circumstances, a refusal can be revoked
orally. See Section 7(c)(1).
Subsection
(d) provides that an individual’s unrevoked refusal to make an anatomical gift
of the individual’s body or part bars all others from later making an
anatomical gift of the body or part. Thus, suppose an individual signs an
unrevoked Section 7 refusal. No other person before or after that individual’s
death could make an anatomical gift for that individual. This section honors
the autonomy of the individual to refuse to have his body or parts become the subject
of an anatomical gift. It prevents families from making donations on behalf of
decedents who, while living, had signed a refusal to make an anatomical gift
unless there is evidence that the individual signing the refusal did not intend
to have that refusal bind others after death.
An
individual might sign a Section 7 refusal that expressly provides that it is
not intended to affect the ability of others to make an anatomical gift
following the individual’s death. If that intent is expressly indicated in the
refusal, or if the refusal were later revoked, then other persons listed in
Section 9 can make an anatomical gift. For example, suppose an individual signs
a Section 7 refusal barring the making of an anatomical gift of the
individual’s body and parts. If that person does not revoke the refusal, then
neither that individual’s agent nor guardian nor any person listed in Section 9
can make an anatomical gift of the individual’s body or parts. However, it is
possible that an individual might wish to bar the individual’s guardian from
making an anatomical gift under Section 5 but not the individual’s family from
making a gift under Section 10. If that intent is expressed in the refusal, it
will be honored. The intent to make only a limited refusal must be set forth
expressly in the Section 7 refusal. Extrinsic evidence would not be admissible
to establish intent to limit the refusal as subsection (d) provides that a
contrary indication be expressly set forth in the refusal.
An
individual’s refusal could be limited to a part. For example, an individual
might sign a refusal to donate the individual’s eyes. In the absence of an
express, contrary indication, the refusal would not apply to the individual’s
other parts. Thus, following the individual’s death, the persons listed in
Section 9 could make an anatomical gift of the individual’s other parts.
A
simple form of refusal under this [act] could provide:
I,
____________________, refuse to make any anatomical gift of my body or any
part.
________________________ ________________________
Date
Signed
Signature of Declarant
SECTION 8. PRECLUSIVE EFFECT OF
ANATOMICAL GIFT, AMENDMENT, OR REVOCATION.
(a) Except as otherwise provided in
subsection (g) and subject to subsection (f), in the absence of an express,
contrary indication by the donor, a person other than the donor is barred from
making, amending, or revoking an anatomical gift of a donor’s body or part if
the donor made an anatomical gift of the donor’s body or part under Section 5
or an amendment to an anatomical gift of the donor’s body or part under Section
6.
(b) A donor’s revocation of an
anatomical gift of the donor’s body or part under Section 6 is not a refusal
and does not bar another person specified in Section 4 or 9 from making an
anatomical gift of the donor’s body or part under Section 5 or 10.
(c) If a person other than the donor
makes an unrevoked anatomical gift of the donor’s body or part under Section 5
or an amendment to an anatomical gift of the donor’s body or part under Section
6, another person may not make, amend, or revoke the gift of the donor’s body
or part under Section 10.
(d) A revocation of an anatomical
gift of a donor’s body or part under Section 6 by a person other than the donor
does not bar another person from making an anatomical gift of the body or part
under Section 5 or 10.
(e) In the absence of an express,
contrary indication by the donor or other person authorized to make an
anatomical gift under Section 4, an anatomical gift of a part is neither a
refusal to give another part nor a limitation on the making of an anatomical
gift of another part at a later time by the donor or another person.
(f) In the absence of an express,
contrary indication by the donor or other person authorized to make an
anatomical gift under Section 4, an anatomical gift of a part for one or
more
of the purposes set forth in Section 4 is not a limitation on the making of an
anatomical gift of the part for any of the other purposes by the donor or any
other person under Section 5 or 10.
(g) If a donor who is an
unemancipated minor dies, a parent of the donor who is reasonably available may
revoke or amend an anatomical gift of the donor’s body or part.
(h) If an unemancipated minor who
signed a refusal dies, a parent of the minor who is reasonably available may
revoke the minor’s refusal.
Comment
Section 2(h) of the 1987 Act
provided that “an anatomical gift that is not revoked by the donor before death
is irrevocable and does not require the consent or concurrence of any person
after the donor’s death.” The intent of that section was to assure donation
finality for anatomical gifts made by donors prior to death. For many years,
however, it was the practice, albeit now changing, for procurement
organizations to seek permission from donor families before parts could be
recovered from deceased donors. This practice, however, is inconsistent both
with the 1987 Act and, more importantly, the respect due to donors who have
made anatomical gifts during their lives. Furthermore, that practice could
result in unnecessary delays in the recovery of organs.
Section 8 is designed to state
firmly the rule that a donor’s autonomous decision regarding the making of an
anatomical gift is to be honored and implemented and is not subject to change
by others. Section 8 not only continues the policy of making lifetime donations
irrevocable but also is restated to take away from families the power, right,
or authority to consent to, amend, or revoke donations made by donors during
their lifetimes.
Section 8 addresses the possible
tension between a donor’s autonomous decision to be a donor with the interest
of surviving family members to make that decision. It addresses this tension by
favoring the decision of the donor over the desires of the family. Section 8(a)
strips surviving family members of at least one stick in a bundle of property
rights they might otherwise have under state law—the right to make, amend, or
revoke an anatomical gift of a body or part if the donor made an anatomical
gift or an amendment of the gift of the body or part. This section does not
affect property rights families might otherwise have in a decedent’s body under
other law, such as the right to dispose of a decedent’s body after the part
that was the subject of the anatomical gift has been recovered. In fact,
language in Section 11(h) confirms the family’s right to dispose of the donor’s
body after the donor’s parts have been recovered for transplantation, therapy,
research, or education.
Section 8(a) provides that, if a
donor has made an anatomical gift or has amended an anatomical gift, no other
person can make, amend, or revoke that gift. For example, suppose a donor gifts
the donor’s organs for transplantation. By virtue of Section 8(a), no other
person can amend or revoke that gift. In fact, because all other persons are
barred from doing so, they have no legal authority or right to amend or revoke
the anatomical gift. This section does not apply to bar the parents of an
unemancipated minor donor who dies under the age of 18 from revoking the minor
donor’s gift. See Section 8(g).
Section 8(a) is subject to the
provisions of subsection (f). Under subsection (f) the donor’s gift of a part
for one purpose does not preclude another person from expanding the gift to
include another purpose under either Section 5 or 10. For example, suppose the
donor signs a document of gift stating: “I give my kidney for transplantation.”
Following the donor’s death, an individual listed in Section 9 could expand
that gift to include research in the event the kidney was not medically
suitable for transplantation. The right to expand the purposes of the gift can
be restricted by the donor.
Section 8(b) provides that the
donor’s revocation of an anatomical gift (as distinguished from a refusal) bars
no one from making an anatomical gift of the donor’s body or parts. The
difference between Section 8(a) and Section 8(b) is that a revocation is an
ambiguous act respecting the donor’s intention to bind others. A donor might
want to bind others, but it is just as likely that a donor was ambivalent and
was more than willing to leave the decision to donate to others. For example,
suppose an individual who had donated a kidney by a donor card later destroys
that card with the intent to revoke the anatomical gift. This revocation will
not prevent another person acting under either Section 5 or 10 from making an
anatomical gift. A donor who wishes both to revoke and bind others not to make
a gift must sign a refusal.
Section 8(c) provides that a gift or
an amendment of a gift by a person other than the donor under Section 5 or 6
bars other persons from making, amending, or revoking that gift under Section
10 only. For example, suppose the guardian of an adult makes a gift on the
adult’s behalf. At the adult’s later death, the adult’s surviving child could
not amend or revoke that gift. On the other hand, suppose a donor’s agent makes
a gift during the donor’s lifetime and later a guardian is appointed for the
donor. The guardian would not be barred from amending that gift or revoking it.
The difference is that the persons named in Section 4 are viewed as the donor’s
alter egos with power to control the donation decision up until the time of the
donor’s death. Of course, the donor could also amend or revoke the agent’s
gift.
Under Section 8(d) if a person other
than the donor revokes an anatomical gift under Section 6, the revocation does
not bar another person from making a gift under either Section 5 or Section 10.
For example, suppose the donor’s parent makes an anatomical gift. Twelve years
later the donor’s agent revokes that gift under Section 6. (Section 8(c) does
not bar the agent from revoking the gift). Then, five years later a guardian is
appointed for the principal. The guardian could make an anatomical gift for the
principal under Section 5 because Section 8(d) does not bar the guardian from
making the gift. Likewise, the revocation of an anatomical gift by an agent,
parent, or guardian would not prevent the making of an anatomical gift under
Section 10. For example, suppose an agent makes an anatomical gift for a donor
which the agent revokes prior to the principal’s death. The principal takes no
further action to effectuate the anatomical gift and dies survived by a spouse
and predeceased by the agent. The spouse could make an anatomical gift under
Section 10 because the agent’s revocation of the anatomical gift does not
prevent the spouse from making the anatomical gift.
Section 8(e), consistent with prior
law, provides that, absent express, contrary indications by the person making
an anatomical gift, the gift of a part is neither a refusal to give other parts
nor a limitation on the making of gifts of other parts. Thus, if a donor makes
an anatomical gift of the donor’s kidney, this gift does not bar the donor’s
family after the donor’s death from making a gift of the donor’s heart.
Anatomical gifts can only be made
for four purposes—transplantation, therapy, research or education. See Sections 4 and 9. Section 8(f)
provides that an anatomical gift of a part for one or more of the purposes of
transplantation, therapy, research or education does not limit the ability to
make a later gift of the part for other purposes by the donor or any other
person under Section 5 or Section 10. For example, suppose a donor donates “all
organs, eyes, and tissue for transplantation or therapy.” That gift would not
bar a gift under Section 10 of the organs, eyes, or tissue for research. The
donor can bar an expansion of the gift’s purposes by an express contrary
direction. For example a donor’s gift of “organs, eyes, and tissue only for
transplantation” would bar others from expanding the purpose of the gift to
include research.
Section 8(g) permits either parent
of an unemancipated minor donor who dies under the age of 18 to revoke that
gift. This subsection applies only if the child dies under the age of 18. It
does not empower the parent of a living minor to revoke that minor’s anatomical
gift while the minor is living. In fact, Section 8(a) would preclude the parent
from revoking the minor child’s anatomical gift. A parent who does not wish the
parent’s minor child to make an anatomical gift should communicate the parent’s
desires to that child. Once the minor donor becomes an adult, neither parent
has the right to revoke the gift.
Under Section 8(h) an unemancipated
minor’s refusal can also be revoked by the minor’s parent if the minor dies
under the age of 18. Like Section 8(g), a minor’s refusal cannot be revoked by
the minor’s parent while the minor is alive.
Both Section 8(g) and 8(h) require
the parent to be reasonably available to either revoke a gift or a refusal. If
both parents are reasonably available, either one can revoke the gift or the
refusal.
SECTION 9. WHO MAY MAKE
ANATOMICAL GIFT OF DECEDENT’S BODY OR PART.
(a) Subject to subsections (b) and
(c) and unless barred by Section 7 or 8, an anatomical gift of a decedent’s
body or part for purpose of transplantation, therapy, research, or education
may be made by any member of the following classes of persons who is reasonably
available, in the order of priority listed:
(1) an agent of the
decedent at the time of death who could have made an anatomical gift under
Section 4(2) immediately before the decedent’s death;
(2) the spouse of the
decedent;
(3) adult children of
the decedent;
(4) parents of the
decedent;
(5) adult siblings of
the decedent;
(6) adult grandchildren
of the decedent;
(7) grandparents of the
decedent;
(8) an adult who
exhibited special care and concern for the decedent;
(9) the persons who were
acting as the [guardians] of the person of the decedent at the time of death;
and
(10) any other person
having the authority to dispose of the decedent’s body.
(b) If there is more than one member
of a class listed in subsection (a)(1), (3), (4), (5), (6), (7), or (9)
entitled to make an anatomical gift, an anatomical gift may be made by a member
of the class unless that member or a person to which the gift may pass under
Section 11 knows of an objection by another member of the class. If an
objection is known, the gift may be made only by a majority of the members of
the class who are reasonably available.
(c) A person may not make an
anatomical gift if, at the time of the decedent’s death, a person in a prior
class under subsection (a) is reasonably available to make or to object to the
making of an anatomical gift.
Comment
Section 9(a) empowers the persons
listed in the section to make an anatomical gift of a decedent’s body or parts
unless they are otherwise barred from doing so under Section 7 or Section 8.
Persons who can make an anatomical gift under Section 9 often will be consulted
whether they would be willing to make a gift when the prospective donor is near
death. See also Section 10, comment
(last paragraph).
The list of persons who can make an
anatomical gift on behalf of a decedent is slightly expanded from prior law.
This list now includes that individual who at the time of the decedent’s death
was acting as an agent of the decedent, adult grandchildren of the decedent,
and a close friend of the decedent.
This [act] does not extend the
agency relationship beyond a principal’s death. Under other law, an agent’s
power under a power of attorney for health care or any other power terminates
when the principal dies. But, under this [act] and assuming that the agent was
neither barred under Section 8 nor prohibited in the power of attorney for
health care from making anatomical gifts, the person who had been acting as an
agent at the time of the principal’s death (even though death terminated the
agency relationship) has the first priority to make an anatomical gift on
behalf of the deceased principal.
Absent a donation by the decedent or
the decedent’s former agent, other persons or classes of person are empowered
to make an anatomical gift in the following order: spouse of the decedent;
adult children of the decedent; parents of the decedent; adult siblings of the
decedent; adult grandchildren of the decedent; grandparents of the decedent; an
adult who exhibited “special care and concern for the decedent;” and the person
who was acting as guardian of the decedent at the time of the decedent’s death.
Lastly, “any other person having the authority to dispose of the decedent’s
body” can make the decision if no other persons are reasonably available. In
those states that recognize domestic partners, the addition of the domestic
partner to Section 9(a)(2) would be warranted. In states that do not recognize domestic
partners, individuals with domestic partners who wish to be donors should make
an anatomical gift before death or designate their domestic partners as agents
to give them the first priority under this section.
To the extent that an individual is
concerned that the person named in Section 9 may not take adequate account of
the individual’s personal preferences regarding anatomical gifts, the onus is
on the individual to either make or bar the making of an anatomical gift.
In the absence of any person listed
in paragraphs (1) through (9) to make an anatomical gift, the gift can be made
by “any other person having the authority to dispose of the decedent’s body.”
This [act], like its predecessors, does not specify what person has the
authority to dispose of a decedent’s body. Who that person is must be
determined by law other than this [act]. One such person might be a coroner or
medical examiner in possession of an unclaimed body who under law other than
this [act] is authorized to dispose of the body after a certain period of time.
Of course, in that case it is most unlikely that the decedent’s organs could be
donated as they are not likely to be medically suitable for transplantation or
therapy given the amount of time that likely will pass before it can be
determined that no one else will claim the body. But, the decedent’s eyes or
tissue might be medically suitable for donation. And, of course, the whole body
could be the subject of an anatomical gift.
Subsection (a) permits any member of
a class to make an anatomical gift. Under subsection (b), however, a class
member cannot make an anatomical gift if the class member, or the person to
which the gift could pass under Section 11, knows of any objection to the
making of the gift by another member of the class. If an objection is known,
the gift can only be made by a majority of the members of the same class who
are reasonably available. If the class member wishing to make the gift is the
only reasonably available member of the class, that class member alone can make
the gift even though the class member knows of an objection by another class
member who is not reasonably available. If more than one member of the class is
reasonably available, the gift can be made only if a majority of them agree. To
illustrate, suppose the decedent is survived by three children. The eldest, who
is unaware of any objection by the other two, can make an anatomical gift. If,
however, the eldest knows that one of the other siblings objects and that
sibling is reasonably available, both must agree to make the gift if the third
sibling is not reasonably available. If all three siblings are reasonably
available, at least two would have to agree to make the gift.
This section departs from both the
1968 Act which required children to act by a majority and the 1987 Act which
barred a class member from making a gift (and the donee from accepting the
gift) if there was a known objection by another member of the class.
The rule of subsection (b) does not
apply to adults who exhibited special care and concern for the decedent. If
there is more than one such person, any one of them can make an anatomical
gift.
A person cannot make an anatomical
gift if, at the time of the decedent’s death, a person in a prior class is
reasonably available to either make or object to the making of an anatomical
gift. See Section 9(c). The
assumption here is that a person in a prior class is reasonably available but
has not yet been contacted by a procurement organization. For example, suppose
only the decedent’s grandchildren are physically present at the hospital when
the decedent dies, but the decedent’s children are able to be contacted. For
purposes of this [act], the children are reasonably available and, therefore,
the grandchildren who are at the hospital cannot make an anatomical gift.
As highlighted above, known
objections by persons not reasonably available do not bar persons who are
reasonably available from making an anatomical gift whether the objections are
held by a person in a prior class or the same class. This is purposeful. The
policy choice here is essentially that only persons who are reasonably
available can make or object to the making of an anatomical gift. That is
because the known objection of a person who is not reasonably available may be
based upon faulty information about the effects of a gift or other concerns
that could have been ameliorated had the person been reasonably available to
discuss the matter with a procurement organization or others.
The concept and definition of
“reasonably available” is drawn from lessons learned in the drafting of the
Uniform Health-Care Decisions Act and borrows from the language in Section
1(14) of that act. The making of an anatomical gift following a decedent’s
death is extremely time sensitive, and a decision to donate must be made within
a relatively short period of time following death if the organs are to remain
viable and human lives are to be saved. Reasonably available is not synonymous
with physically present. The phrase (defined in Section 2 (23)) means able to
be contacted without “undue effort and willing and able to act in a timely
manner consistent with existing medical criteria necessary for the making of an
anatomical gift.” Thus, a sibling who can be easily contacted by telephone is
reasonably available. Section 14(g) imposes on procurement organizations an
obligation to make a reasonable search for persons with a priority to make an
anatomical gift.
An individual with a higher priority
to make an anatomical gift may be unwilling to make a decision, preferring it
be made by others. For example, a decedent’s spouse may be unwilling to make a
decision to donate the decedent’s organs, preferring that any decision be made
by the decedent’s children. Under this
[act] the spouse, being unwilling to make a decision, is not reasonably
available. There is some concern that an unwillingness to make a decision is
equivalent to an objection and should have been treated as such under this
[act]. But, this [act] reflects a judgment that the potential savings in human
life justifies the position that the inability to express a decision is
tantamount to not being available to make a decision. This policy choice was
supported by the fact that procurement organizations are well-trained to work
with family members when seeking an anatomical gift to distinguish between an
objection and a true unwillingness to make a decision.
SECTION 10. MANNER OF MAKING,
AMENDING, OR REVOKING ANATOMICAL GIFT OF DECEDENT’S BODY OR PART.
(a) A person authorized to make an
anatomical gift under Section 9 may make an anatomical gift by a document of
gift signed by the person making the gift or by that person’s oral
communication that is electronically recorded or is contemporaneously reduced
to a record and signed by the individual receiving the oral communication.
(b) Subject to subsection (c), an
anatomical gift by a person authorized under Section 9 may be amended or
revoked orally or in a record by any member of a prior class who is reasonably
available. If more than one member of the prior class is reasonably available,
the gift made by a person authorized under Section 9 may be:
(1) amended only if a
majority of the reasonably available members agree to the amending of the gift;
or
(2) revoked only if a
majority of the reasonably available members agree to the revoking of the gift
or if they are equally divided as to whether to revoke the gift.
(c) A revocation under subsection
(b) is effective only if, before an incision has been made to remove a part
from the donor’s body or before invasive procedures have begun to prepare the
recipient, the procurement organization, transplant hospital, or physician or
technician knows of the revocation.
Comment
Section 10(a) provides that an
anatomical gift by a person authorized to make the gift under Section 9 can be
made by a document of gift that is signed by the person making the gift. The
document of gift could be an e-mail. This might be a common form of a document
of gift where the gift is made by a person named in Section 9 who is reasonably
available but not physically present at the hospital where the donor died to
deal in person with the procurement organization.
The person also may make the gift
orally. An oral gift must be recorded or reduced to a record that is signed by
the individual receiving the oral communication. For example, the decedent’s
spouse might consent to a gift over the telephone at the request of a
procurement organization. The individual to whom the gift was communicated should
then note that gift in a signed record.
In common with prior law, if a
person makes an anatomical gift but there is a member of a prior class who
becomes reasonably available, that member may revoke the gift. See Section 10(b)(2). If more than one
member of the prior class becomes reasonably available, then the gift can be
revoked only if the majority of the members of the prior class agree to revoke
the gift or if they are equally divided. See
Section 10(b)(2). For example, suppose an anatomical gift of a kidney is made
by a parent of the decedent because none of the decedent’s children are
reasonably available to make the gift. However, before an incision is made to
remove the kidney from the donor’s body or invasive procedures have begun to
prepare the recipient, a child of the decedent becomes reasonably available and
purports to revoke the gift. If this child is the decedent’s only reasonably
available child, the gift is revoked. If, on the other hand, two children
become reasonably available, the gift is revoked only if they agree to revoke
or they are equally divided whether to revoke. And, if three children become
reasonably available, the gift is revoked if at least two of the three agree to
revoke the gift.
If a gift is made by a member of a
more remote class, the gift can be amended by the members of the prior class
who become reasonably available. See
Section 10(b)(1). If more than one
member becomes reasonably available, the gift can be amended only if a majority
of them agree. See Section 10(b)(1). For
example, a grandchild of the decedent makes an anatomical gift of the
decedent’s kidneys for transplant. Any reasonably available child or, if more
than one, a majority of them can amend the gift to provide that if the kidney
is not medically suitable for transplant, it can be used for research.
Amendments are not subject to subsection (c) (requiring revocations to be made
before the incision is made to remove a part from the body or before invasive
procedures have begun to prepare the recipient) as amendments typically would
involve extending the purpose of the gift rather than preventing the gift from
being made at all.
This
[act] is silent regarding whether a Section 10 gift can be made while a donor
or prospective donor is near death or whether the gift can only be made after
the donor or prospective donor has died. This is purposeful in order to allow
procurement organizations and the person having the priority to make an
anatomical gift under Section 9 some latitude as to when to sign a document of
gift. Of course, no gift is effective unless the donor or prospective donor
dies and at the time of death the person making the anatomical gift then had
the priority to make the gift.
SECTION 11. PERSONS THAT MAY
RECEIVE ANATOMICAL GIFT; PURPOSE OF ANATOMICAL GIFT.
(a) An anatomical gift may be made
to the following persons named in the document of gift:
(1) a hospital;
accredited medical school, dental school, college, or university; organ
procurement organization; or other appropriate person, for research or
education;
(2) subject to
subsection (b), an individual designated by the person making the anatomical
gift if the individual is the recipient of the part;
(3) an eye bank or
tissue bank.
(b) If an anatomical gift to an
individual under subsection (a)(2) cannot be transplanted into the individual,
the part passes in accordance with subsection (g) in the absence of an express,
contrary indication by the person making the anatomical gift.
(c) If an anatomical gift of one or
more specific parts or of all parts is made in a document of gift that does not
name a person described in subsection (a) but identifies the purpose for which
an anatomical gift may be used, the following rules apply:
(1) If the part is an
eye and the gift is for the purpose of transplantation or therapy, the gift
passes to the appropriate eye bank.
(2) If the part is
tissue and the gift is for the purpose of transplantation or therapy, the gift
passes to the appropriate tissue bank.
(3) If the part is an organ
and the gift is for the purpose of transplantation or therapy, the gift passes
to the appropriate organ procurement organization as custodian of the organ.
(4) If the part is an
organ, an eye, or tissue and the gift is for the purpose of research or education,
the gift passes to the appropriate procurement organization.
(d) For the purpose of subsection
(c), if there is more than one purpose of an anatomical gift set forth in the
document of gift but the purposes are not set forth in any priority,
the
gift must be used for transplantation or therapy, if suitable. If the gift
cannot be used for transplantation or therapy, the gift may be used for
research or education.
(e) If an anatomical gift of one or
more specific parts is made in a document of gift that does not name a person
described in subsection (a) and does not identify the purpose of the gift, the
gift may be used only for transplantation or therapy, and the gift passes in
accordance with subsection (g).
(f) If a document of gift specifies only
a general intent to make an anatomical gift by words such as “donor”, “organ
donor”, or “body donor”, or by a symbol or statement of similar import, the gift
may be used only for transplantation or therapy, and the gift passes in
accordance with subsection (g).
(g) For purposes of subsections (b),
(e), and (f) the following rules apply:
(1) If the part is an
eye, the gift passes to the appropriate eye bank.
(2) If the part is
tissue, the gift passes to the appropriate tissue bank.
(3) If the part is an
organ, the gift passes to the appropriate organ procurement organization as
custodian of the organ.
(h) An anatomical gift of an organ
for transplantation or therapy, other than an anatomical gift under subsection
(a)(2), passes to the organ procurement organization as custodian of the organ.
(i) If an anatomical gift does not
pass pursuant to subsections (a) through (h) or the decedent’s body or part is
not used for transplantation, therapy, research, or education, custody of the
body or part passes to the person under obligation to dispose of the body or
part.
(j) A person may not accept an
anatomical gift if the person knows that the gift was not effectively made
under Section 5 or 10 or if the person knows that the decedent made a refusal
under Section 7 that was not revoked. For purposes of the subsection, if a
person knows that an anatomical gift was made on a document of gift, the person
is deemed to know of any amendment or revocation of the gift or any refusal to
make an anatomical gift on the same document of gift.
(k) Except as otherwise provided in
subsection (a)(2), nothing in this [act] affects the allocation of organs for
transplantation or therapy.
Comment
Section 11 sets forth various rules
to identify the person to which a part or body passes as the result of an
anatomical gift.
Under Section 11(a)(1), an
anatomical gift of a body for research or education can be made to a named
organization. These gifts typically occur as the result of a whole body
donation to a particular institution in the donor’s will or as the result of a
prior arrangement between a donor and a particular research or educational
institution.
While Section 11(a)(2) permits a
donation of a part to a named individual if the part is to be transplanted into
that individual, such donations are exceedingly rare for at least two reasons.
Only in rare circumstances would a donor, during the donor’s life, know of an
individual who would need an organ, eye, or tissue that would be the subject of
an anatomical gift and, similarly, decedent’s families are generally not likely
to know the identity of such individuals. Furthermore, gifts to a named
individual may not be medically suitable as the donor and recipient may have
different blood types or other characteristics that make them incompatible.
If a gift of a part is made to a
named individual and it is later determined that the part cannot be
transplanted into that individual, the part passes to the organ procurement
organization as custodian under subsection (g) to allocate the organ in
accordance with applicable organ allocation policies unless the person making
the gift expressly provides to the contrary. See Section 11(b).
Gifts by donors before death and
gifts by others after a donor’s death could specify both the parts that are the
subject of the anatomical gift and the purposes of the gift. For example, a
donor might make a gift of a kidney for transplantation or therapy. If a gift
is made of one or more specific parts and specifies the purposes of the gift but
does not name a person to whom the gift passes, then the gift passes to the
appropriate eye bank if the gift is an eye and for the purpose of
transplantation or therapy. See
Section 11(c)(1). If the gift is of tissue for the purpose of transplantation or
therapy, it passes to the appropriate tissue bank, Section 11(c)(2), and if the
gift is an organ for the purpose of transplantation or therapy it passes to the
appropriate organ procurement organization as custodian of the organ, Section
11(c)(3). A gift of a specific part for purposes of research or education
passes to the appropriate eye bank, tissue bank, or organ procurement
organization. See Section 11(c)(4). See also Section 5 comments, for
examples of forms.
In some cases the person making the
anatomical gift specifies that the gift can be used for transplantation,
therapy, research, or education but these purposes are not set forth in the
document of gift in any priority. For example, a donor might donate “my kidney
for purposes of transplantation, therapy, research, or education.” Under
Section 11(d), the gift must first be used for transplantation or therapy if
suitable for either of those purposes. If not suitable, the gift may be used
for research or education.
Most gifts made by donors before
death are made by a driver’s license or entry on a donor registry. If a donor’s
gift does not specify the purpose of the gift, as would occur if the driver’s
license indicated only that the donor was an “organ donor,” the gift is only of
the donor’s parts (not the whole body), and the parts may be used only for
transplantation or therapy. See
Section 11(f). Likewise, if a gift of a part is made but the document of gift
fails to specify the purpose of the gift or name a person to receive the gift,
the part may be used only for transplantation or therapy. See Section 11(e). In either case, if the part is an eye, it passes
to the appropriate eye bank, if tissue, it passes to the appropriate tissue
bank, and if an organ, it passes to the appropriate organ procurement
organization as custodian of the organ. See
Section 11 (e), (f) and (g).
If a gift made under Section 4 is
limited to transplantation or therapy by Section 11(e) or (f), procurement
organizations could approach persons with a priority to make gifts under
Section 9 to expand the purpose of the gift to include research or education
and obtain their consent to use the gift for those purposes in the event the
gift is unsuitable for transplantation or therapy. See Section 8(f).
A statement on a document of gift
that the donor is an “organ donor” is an anatomical gift and not merely
evidence of intention to be a donor. See
Section 11(f). Thus, parts can be recovered from the donor without the need of
a Section 10 gift. Additionally, as an anatomical gift by the donor, surviving
family members would be barred from revoking the gift. See Section 8.
Under this [act], when an organ
passes to an organ procurement organization for purposes of transplantation or
therapy, it passes to the organ procurement organization as a “custodian.” See Section 11(h). Under Section 274 of
the National Organ Transplant Act in 1984, Congress created the Organ
Procurement Transplantation Network (OPTN). See,
42 CFR §§ 121 et seq. Among other things, the OPTN oversees the nationwide
allocation of organs for transplantation. Currently, the OPTN contracts with
the United Network Organ Sharing (“UNOS”), a non-profit corporation, to
administer the nationwide allocation of organs for transplantation. UNOS, in
turn, has agreements with numerous organ procurement organizations that have
specific designated service areas. The organ procurement organizations have
primary responsibility to evaluate the medical suitability of organs for
transplantation, seek anatomical gifts under Section 10 when the decedent was
not a donor at or near death, arrange for the procurement of organs from
donors, and cause organs to be allocated and transferred to recipients in
accordance with their contractual obligations with the OPTN. Thus, organs
passing to organ procurement organizations under this [act] for the purpose of
transplantation or therapy pass to them in a custodial capacity. There is no
expectation that the organ procurement organization will retain the organ. Eyes
and tissue pass to the appropriate eye or tissue bank under no similar
restrictions; therefore, eye and tissue banks do not properly take as a
custodian.
To assist in the evaluation of
potential donors, federal law also requires hospitals receiving Medicare and
Medicaid funding to refer all deaths or near deaths to organ procurement
organizations or a third party designated by the organ procurement organization
for possible organ, eye, and tissue donation. See 42 CFR § 482.45 (Medicare and Medicaid Programs: Conditions of
Participation: Identification of Potential Organ, Tissue, and Eye Donors and
Transplant Hospitals’ Provision of Transplant-Related Data). These referral
requirements have made the provisions of Section 5 of the 1987 Act obsolete,
and, accordingly, those provisions have been deleted from this [act].
Section 11(i) provides that, if
parts do not pass under the preceding provisions of the [act] or are not used
for transplantation, therapy, research, or education, custody of the decedent’s
body or parts vests in the person under obligation to dispose of them. The
person having custody to dispose of the decedent’s body is determined by law
other than this [act].
This [act] does not define the
appropriate eye or tissue bank or organ procurement organization. Which of the
many eye banks, tissue banks, or organ procurement organizations is the
appropriate one is determined by factors outside the scope of this [act]. For
example, hospitals, coroners or medical examiners likely will have cooperative
agreements with particular eye and tissue banks that coordinate eye and tissue
donations. As for the appropriate organ procurement organizations, that is
determined by the policies of the OPTN.
Under the common law, a gift is
effectuated by intent, delivery, and acceptance. (But see Section 13(a) regarding delivery). In common with general
principles of gift law, an express acceptance of an anatomical gift is not
required. However, Section 11(j) provides certain bars on the acceptance of an
anatomical gift by a person that would trump the “acceptance presumption.” A
person may not accept an anatomical gift if the person knows of a Section 7
refusal. A person may not accept an anatomical gift if the person knows that a
gift once made had been revoked or that a gift under Section 5 or 10 was not
properly made. For example, suppose the decedent’s children wish to donate
organs that under Section 11 would pass to an organ procurement organization
but that organization knows that the decedent’s spouse is reasonably available
to make or refuse to make a gift. The organ procurement organization may not
accept the purported gift from the children. Suppose an organ procurement
organization knows an anatomical gift was made on a document of gift. Because
of the imputed knowledge requirement in the last sentence of Section 11(j), the
organization may not accept that gift if on the same document of gift there is
evidence that the gift was revoked.
Lastly, nothing in this [act]
affects the allocation of organs for transplantation or therapy except in the
case of a gift to a named individual under Section 11(a)(2). See Section 11(k). As noted above, the
allocation of organs is controlled by the policies of the OPTN.
SECTION 12. SEARCH AND
NOTIFICATION.
(a) The following persons shall make
a reasonable search of an individual who the person reasonably believes is dead
or near death for a document of gift or other information identifying the
individual as a donor or as an individual who made a refusal:
(1) a law enforcement
officer, firefighter, paramedic, or other emergency rescuer finding the
individual; and
(2) if no other source
of the information is immediately available, a hospital, as soon as practical
after the individual’s arrival at the hospital.
(b) If a document of gift or a refusal
to make an anatomical gift is located by the search required by subsection
(a)(1) and the individual or deceased individual to whom it relates is taken to
a hospital, the person responsible for conducting the search shall send the
document of gift or refusal to the hospital.
(c) A person is not subject to
criminal or civil liability for failing to discharge the duties imposed by this
section but may be subject to administrative sanctions.
Comment
This section remains in substance
the same as the prior 1968 and 1987 Acts. The constitutional standards of
“reasonable search” under state and federal laws apply. In ordinary
circumstances, reasonable search would only be of the person or in the
immediate vicinity of the person. No courts have applied or extended this
provision to allow a random and extensive search of premises. Because most
likely an anatomical gift would have been made on a driver’s license or donor
registry and any donation on them is readily accessed by a procurement
organization, there is no significant need to extend this section to allow
searches of the premises.
SECTION 13. DELIVERY OF DOCUMENT
OF GIFT NOT REQUIRED; RIGHT TO EXAMINE.
(a) A document of gift need not be
delivered during the donor’s lifetime to be effective.
(b) Upon or after an individual’s
death, a person in possession of a document of gift or a refusal to make an
anatomical gift with respect to the individual shall allow examination and
copying of the document of gift or refusal by a person authorized to make or object
to the making of an anatomical gift with respect to the individual or by a
person to which the gift could pass under Section 11.
Comment
Section
13(a), in common with prior versions of this [act], rejects the common-law
principle that a gift requires delivery to be effective. With the exception of
gifts of whole bodies in deeded body programs, most anatomical gifts made by a
donor during the donor’s life are made without any communication between the
person making the gift and the person to which the gift passes under Section 11
and for obvious reasons—the person is likely unknown.
This
section does not affirmatively require any person in possession of a document
of gift or a refusal to come forward at a decedent’s death with that
information. But see Section 12(b)
(obligation of certain individuals to deliver a document of gift or refusal
following a search). On the other hand, if a document of gift or a refusal is
in the possession of someone other than the donor, that person shall allow
other persons who can make or object to the making of an anatomical gift to
review and copy such records. They shall also allow the person to which a gift
could pass under Section 11 to examine and copy such documents. See Section 13(b). See also Section 20(c)(2).
SECTION 14. RIGHTS AND DUTIES OF
PROCUREMENT ORGANIZATION AND OTHERS.
(a) When a hospital refers an
individual at or near death to a procurement organization, the organization
shall make a reasonable search of the records of the [state department of motor
vehicles] and any donor registry that it knows exists for the geographical area
in which the individual resides to ascertain whether the individual has made an
anatomical gift.
(b) A procurement organization must
be allowed reasonable access to information in the records of the [state
department of motor vehicles] to ascertain whether an individual at or near
death is a donor.
(c) When a hospital refers an
individual at or near death to a procurement organization, the organization may
conduct any reasonable examination necessary to ensure the medical suitability
of a part that is or could be the subject of an anatomical gift for
transplantation, therapy, research, or education from a donor or a prospective
donor. During the examination period, measures necessary to ensure the medical
suitability of the part may not be withdrawn unless the hospital or procurement
organization knows that the individual expressed a contrary intent.
(d) Unless prohibited by law other
than this [act], at any time after a donor’s death, the person to which a part
passes under Section 11 may conduct any reasonable examination necessary to
ensure the medical suitability of the body or part for its intended purpose.
(e) Unless prohibited by law other
than this [act], an examination under subsection (c) or (d) may include an
examination of all medical and dental records of the donor or prospective
donor.
(f) Upon the death of a minor who
was a donor or had signed a refusal, unless a procurement organization knows
the minor is emancipated, the procurement organization shall conduct a
reasonable search for the parents of the minor and provide the parents with an
opportunity to revoke or amend the anatomical gift or revoke the refusal.
(g) Upon referral by a hospital
under subsection (a), a procurement organization shall make a reasonable search
for any person listed in Section 9 having priority to make an anatomical gift
on behalf of a prospective donor. If a procurement organization receives
information that an anatomical gift to any other person was made, amended, or
revoked, it shall promptly advise the other person of all relevant information.
(h) Subject to Sections 11(i) and
23, the rights of the person to which a part passes under Section 11 are
superior to the rights of all others with respect to the part. The person may
accept or reject an anatomical gift in whole or in part. Subject to the terms
of the document of gift and this [act], a person that accepts an anatomical
gift of an entire body may allow embalming, burial or cremation, and use of
remains in a funeral service. If the gift is of a part, the person to which the
part passes under Section 11, upon the death of the donor and before embalming,
burial, or cremation, shall cause the part to be removed without unnecessary
mutilation.
(i) Neither the physician who
attends the decedent at death nor the physician who determines the time of the
decedent’s death may participate in the procedures for removing or
transplanting a part from the decedent.
(j) A physician or technician may
remove a donated part from the body of a donor that the physician or technician
is qualified to remove.
Comment
When
a hospital refers an individual at or near death to a procurement organization,
Section 14(a) requires the procurement organization to conduct a reasonable
search of the motor vehicle records or of any donor registry it knows to exist
for the geographical area in which that individual resides to determine if that
individual is a donor. This [act] does not require a hospital to make a
referral to a procurement organization. However, a referral may be required by
contract or by law other than this [act]. See,
e.g., Section 42 CFR § 482.45.
Section
14(b) requires a state department of motor vehicles to allow all procurement
organizations reasonable access to information in the department’s records.
Procurement
organizations may conduct a reasonable examination to determine the medical
suitability of a part that is or could be the subject of an anatomical gift.
This examination typically is made in a relatively short period of time. During
the examination period, measures necessary to ensure the medical suitability of
a part cannot be withdrawn from the individual who was referred to the
procurement organization unless the procurement organization or hospital knows
that individual expressly provided to the contrary. See Section 14(c). A general direction in a power of attorney for
health care or advance health-care directive that the patient does not wish to
have life prolonged by the administration of life support systems should not be
construed as an expression of a contrary intent. See Section 14(c). See also,
Section 21.
Persons
to whom the part passes after the donor’s death also may conduct a reasonable
examination to ensure the medical suitability of the part. An examination
includes an examination of the relevant medical records. See Section 14(e). Section 14(e) is not inconsistent with Section
164.512(h) of the HIPAA regulations permitting the disclosure without consent of
protected health information “to organ procurement organizations or other
entities engaged in the procurement, banking, or transplantation of cadaveric
organs, eyes, or tissue for the purpose of facilitating organ, eye, or tissue
donation and transplantation.”
If
a minor donor dies, the minor’s parents are entitled to revoke the minor’s
anatomical gift or refusal, if any. Section 14(f) requires a procurement
organization to make a reasonable search for the minor’s parents to provide
them with an opportunity to do so.
Under
Section 14(g), a procurement organization also is required to make a reasonable
search for any person empowered to make a gift under Section 9. If the donor
made an anatomical gift of all parts for transplantation, therapy, research, or
education or of the donor’s whole body, there would be no one under Section 9
with a priority to make a gift because the persons listed in Section 9 would be
barred by Section 8 from making or revoking the gift. Thus, if a donor made such
a gift, there is no reason for procurement organizations to search for any of
the persons named in Section 9.
Section
14(g) also requires a procurement organization that acquires knowledge that an
anatomical gift has been made to another person to advise that person of the
gift. For example, suppose an organ procurement organization discovers, while
searching a donor registry, that an anatomical gift was made of the eyes. The
organ procurement organization is required to notify the appropriate eye bank
of that gift.
Under
Section 14(j) neither the physician who attends the decedent at death nor the
physician who determines the time of death may participate in the procedures
for removing or transplanting a part. The concept of “attends” is well known in
the medical profession and contemplates the attending physician who cared for
the donor during the donor’s life. This section is similar to provisions in
prior law and is intended to bar what might otherwise be perceived as a
conflict of interest should a physician attend both the donor and the
recipient. Some surveys have suggested that a small segment of the population
believes that a patient who might die without proper medical attention may not
be treated in order that the patient’s organs can be used for another. While
there is absolutely no evidence that this has ever occurred, this section is
included in this [act] to address any public misperceptions by making clear
that it should not be able to happen legally.
SECTION 15. COORDINATION OF
PROCUREMENT AND USE. Each hospital in this state shall enter into
agreements or affiliations with procurement organizations for coordination of
procurement and use of anatomical gifts.
Comment
42
CFR § 482.45 (Medicare and Medicaid Programs: Conditions of Participation: Identification
of Potential Organ, Tissue, and Eye Donors and Transplant Hospitals’ Provision
of Transplant-Related Data) sets forth criteria requiring hospitals and organ
procurement organizations to have cooperative agreements to permit organ
procurement organizations to determine the suitability of organs for
transplant. Furthermore in the absence of alternative arrangements by a
hospital, organ procurement organizations have the responsibility to determine
the suitability of tissues and eyes using the definition of potential tissue
and eye donors and the notification protocol developed in consultation with the
tissue and eye banks identified by the hospital for this purpose. Hospitals are
also required to (1) have an agreement with at least one tissue bank and one
eye bank to cooperate in the retrieval, processing, preservation, storage, and
distribution of tissue and eyes and (2) ensure, working with organ procurement
organizations, that families of potential donors are informed of the option of
donating eyes, tissue, and organs.
SECTION 16. SALE OR PURCHASE OF PARTS PROHIBITED.
(a) Except as otherwise provided in
subsection (b), a person that for valuable consideration, knowingly purchases
or sells a part for transplantation or therapy if removal of a part from an
individual is intended to occur after the individual’s death commits a
[[felony] and upon conviction is subject to a fine not exceeding [$50,000] or
imprisonment not exceeding [five] years, or both][class[ ] felony].
(b) A person may charge a reasonable
amount for the removal, processing, preservation, quality control, storage,
transportation, implantation, or disposal of a part.
Comment
This
section applies only to anatomical gifts and is substantially the same as the
provisions in the 1968 and 1987 Acts. It only applies to sales of parts
intended to be recovered from a decedent after death for transplantation or
therapy. It remains essentially unchanged from prior law. This section is
consistent and in accord with the National Organ Transplant Act, 42 U.S. C. §
274(e).
SECTION 17. OTHER PROHIBITED ACTS. A person that, in order to obtain a financial
gain, intentionally falsifies, forges, conceals, defaces, or obliterates a
document of gift, an amendment or revocation of a document of gift, or a
refusal commits a [[felony] and upon conviction is subject to a fine not
exceeding [$50,000] or imprisonment not exceeding [five] years, or both]
[class[ ] felony].
Comment
This
section is new and addresses abuses that have been widely reported. It
criminalizes the intentional falsification of a document of gift or refusal
when done to obtain a financial gain. For example, suppose a person falsifies a
document of gift in order to sell a decedent’s part to a research institution.
The person who falsified the document of gift would be guilty of a felony.
The
only express liability sections in this [act] are in Section 16 relating to
sales and Section 17 relating to falsified documents. Occasional news stories
have surfaced about alleged other improprieties in the procurement and
allocation of organs and some have argued that this [act] should address them.
However, those other improprieties are addressed by law other than this [act]
or administratively, including regulatory rules, licensing requirements, Unfair
and Deceptive Practices Acts, and the common law.
SECTION 18. IMMUNITY.
(a) A person that acts in accordance
with this [act] or with the applicable anatomical gift law of another state, or
attempts in good faith to do so, is not liable for the act in a civil action,
criminal prosecution, or administrative proceeding.
(b) Neither the person making an
anatomical gift nor the donor’s estate is liable for any injury or damage that
results from the making or use of the gift.
(c) In determining whether an
anatomical gift has been made, amended, or revoked under this [act], a person
may rely upon representations of an individual listed in Section 9(a)(2), (3),
(4), (5), (6), (7), or (8) relating to the individual’s relationship to the
donor or prospective donor unless the person knows that the representation is
untrue.
Comment
A
version of subsection (a) has been in the two prior anatomical gift acts. See Subsection 7(c) of the 1968 Act and
Section 11(c) of the 1987 Act. In the 1968 Act, “good faith” had the common-law
meaning of honesty-in-fact. In short, it was meant to be a subjective standard
involving determination of the intent or state of mind of the person concerned,
namely the honesty of intent. As the official comment for Section 7 of the 1968
Act states: “The entire section 7 merits genuinely liberal interpretation to
effectuate the purpose and intent of the Uniform Act, that is, to encourage and
facilitate the important and ever increasing need for human tissue and organs
for medical research, education and therapy, including transplantation.” Thus,
immunity was intended to be extended to persons which generally and
substantively act in accordance with the 1968 Act, with honesty of intent.
If
parties were held to an overly strict adherence to this [act] when transplants
must be made shortly after the decedent’s death, it might well have a chilling
effect on the making of anatomical gifts for the purpose of transplantation or
therapy. This [act] retains the meaning of the term of “good faith” in the 1968
Act in order to encourage and facilitate transplantation. On the other hand, if
a person acts in subjective “bad faith,” the common law provides remedies.
In
order to encourage donations, Section 18(b) immunizes the person making an anatomical
gift and the donor’s estate from any liability for damages resulting from the
making or using of an anatomical gift. Persons who make anatomical gifts and
donors have little or no ability to determine the medical suitability or risks
associated with transplantation or therapy of donated parts. Risk assessment is
appropriately left to the medical community, broadly conceived.
When
an individual at or near death who is not a donor has been referred to a
procurement organization, the organization will seek out persons to discuss the
possibility of making an anatomical gift if the individual had not made a
refusal. Because the gift can only be made by the persons listed in Section 9
with the appropriate priority, Section 18(c) provides that procurement organizations
can rely on the representations of the individuals listed in Section 9(a)(2)
through (8) as to their relationship to the donor or prospective donor. This
immunity does not apply if the individual who documents a gift knows the
representation is false.
The
purpose of subsection (c) is to relieve procurement organizations of the burden
of ascertaining the truthfulness of relationship claims because proof may be
impracticable or time consuming in light of the need to act expeditiously to
effectuate an anatomical gift. For example, if an individual claims to be the
decedent’s spouse or child, the procurement organization can rely on that
representation. This immunity does not run to persons claiming to be agents or
guardians or persons who have authority to dispose of a decedent’s body. Agents
or guardians should have documentation of their relationship readily available
or their relationship to the donor or prospective donor will likely be
reflected in the available medical records.
SECTION 19. LAW GOVERNING
VALIDITY; CHOICE OF LAW AS TO EXECUTION OF DOCUMENT OF GIFT; PRESUMPTION OF
VALIDITY.
(a) A document of gift is valid if
executed in accordance with:
(1) this [act];
(2) the laws of the
state or country where it was executed; or
(3) the laws of the
state or country where the person making the anatomical gift was domiciled, has
a place of residence, or was a national at the time the document of gift was
executed.
(b) If a document of gift is valid
under this section, the law of this state governs the interpretation of the
document of gift.
(c) A person may presume that a
document of gift or amendment of an anatomical gift is valid unless that person
knows that it was not validly executed or was revoked.
Comment
Section 19 is new to the anatomical
gift act and accomplishes two things. First, it assures that a document of gift
is valid if it was valid either in the place where executed or in the place
where the person making the gift was domiciled, had a residence, or was a
national. This section tracks like provisions for wills, such as Section 2-506
of the Uniform Probate Code.
More importantly, Section 19(c)
provides that a person can presume a document of gift to be valid unless the
person has actual knowledge that it was not validly executed or was revoked.
For example, if the person knows that the donor had signed a Section 7 refusal
but the document of gift was signed by the decedent’s spouse following the
decedent’s death, the person knows that the document of gift was not validly
executed.
SECTION 20. DONOR REGISTRY.
(a) The [insert name of appropriate
state agency] may establish or contract for the establishment of a donor
registry.
(b) The [state department of motor
vehicles] shall cooperate with a person that administers any donor registry
that this state establishes, contracts for, or recognizes for the purpose of
transferring to the donor registry all relevant information regarding a donor’s
making, amendment to, or revocation of an anatomical gift.
(c) A donor registry must:
(1) allow a donor or
other person authorized under Section 4 to include on the donor registry a
statement or symbol that the donor has made, amended, or revoked an anatomical
gift;
(2) be accessible to a
procurement organization to allow it to obtain relevant information on the
donor registry to determine, at or near death of the donor or a prospective
donor, whether the donor or prospective donor has made, amended, or revoked an
anatomical gift; and
(3) be accessible for
purposes of paragraphs (1) and (2) seven days a week on a 24-hour basis.
(d) Personally identifiable
information on a donor registry about a donor or prospective donor may not be
used or disclosed without the express consent of the donor, prospective donor,
or person that made the anatomical gift for any purpose other than to
determine, at or near death of the donor or prospective donor, whether the
donor or prospective donor has made, amended, or revoked an anatomical gift.
(e) This section does not prohibit
any person from creating or maintaining a donor registry that is not
established by or under contract with the state. Any such registry must comply
with subsections (c) and (d).
Legislative
Note: If the state has an
existing donor registry statute, it should consider whether this section is
necessary. It should also consider whether subsections (c) and (d), and Section
14(g)(last sentence), should be incorporated into its existing statute.
Subsection (b) may be deleted if the state department of motor vehicles is the
agency specified in subsection (a).
Comment
A donor registry is one of many
devises to facilitate the making of anatomical gifts. In time, it may prove to
be the most effective way of making anatomical gifts, particularly when the
records of the state department of motor vehicles and the donor registry can be
coordinated to assure a unitary source of donor information. This section is
intended primarily to encourage states to facilitate the creation of donor
registries operated by the state or by another. This section should not be
construed to prohibit otherwise valid anatomical gifts as provided for in
Section 5.
The section sets forth minimum
requirements for a donor registry whether created by the state or not. These
requirements are that the registry: (1) provide an electronic database that
allows persons to make an anatomical gift by use of a statement or symbol; (2)
be accessible to all procurement organizations at or near the time of death of
a donor or prospective donor to determine whether the donor or prospective
donor made, amended, or revoked an anatomical gift; and (3) be operational on a
seven day a week, twenty-four hour basis.
Under subsection (d), a donor’s
personally identifiable information on a donor registry may not be used or
disclosed without appropriate consent except to determine whether the donor or
prospective donor has made, amended, or revoked an anatomical gift.
This section does not require states
to create or contract for the creation of a donor registry. It merely gives them
discretion to do so. Also, this section does not bar the creation of a private
donor registry although it does require private registries to meet the
requirements in subsection (c) and (d).
Although every donor registry
meeting the requirements of Section 20 would also meet the Section 2(8)
definition of a donor registry, the definition of a donor registry in Section
2(8) is not tied to meeting the Section 20 requirements. This was purposeful. A
donor registry as a place to make an anatomical gift should be broadly defined
to respect the wishes of donors who make an anatomical gift on a registry that
should, but failed to, comply with this section.
SECTION 21. EFFECT OF ANATOMICAL
GIFT ON ADVANCE HEALTH-CARE DIRECTIVE.
(a) In this section:
(1)
“Advance health-care directive” means a power of attorney for health care or a
record signed or authorized by a prospective donor containing the prospective
donor’s direction concerning a health-care decision for the prospective donor.
(2)
“Declaration” means a record signed by a prospective donor specifying the
circumstances under which a life support system may be withheld or withdrawn
from the prospective donor.
(3)
“Health-care decision” means any decision regarding the health care of the prospective
donor.
(b) If a prospective donor has a
declaration or advance health-care directive and the terms of the declaration
or directive and the express or implied terms of a potential anatomical gift
are in conflict with regard to the administration of measures necessary to
ensure the medical suitability of a part for transplantation or therapy, the
prospective donor’s attending physician and prospective donor shall confer to
resolve the conflict. If the prospective
donor is incapable of resolving the conflict, an agent acting under the
prospective donor’s declaration or directive, or, if none or the agent is not
reasonably available, another person authorized by law other than this [act] to
make health-care decisions on behalf of the prospective donor, shall act for
the donor to resolve the conflict. The
conflict must be resolved as expeditiously as possible. Information relevant to the resolution of the
conflict may be obtained from the appropriate procurement organization and any
other person authorized to make an anatomical gift for the prospective donor
under Section 9. Before resolution of
the conflict, measures necessary to ensure the medical suitability of the part
may not be withheld or withdrawn from the prospective donor if withholding or
withdrawing the measures is not contraindicated by appropriate end-of-life
care.
Comment
This section differs from Section
14(c). That section provides that measures necessary to ensure the medical
suitability of a part not be withdrawn while an examination is being made to
determine whether an individual who has been referred to a procurement
organization has a part that could be the subject of an anatomical gift. It
applies when a patient on life support systems is referred to a procurement organization
for evaluation as a prospective donor as required under federal rules relating
to required referrals. If, following such an examination, it is determined by
the procurement organization that the individual has a part that could be the
subject of an anatomical gift, the individual is a prospective donor under this
section unless the individual had signed a refusal. In light of the definition
of a prospective donor, see Section
2(22), this section also applies to a donor near death who has medically
suitable organs for transplantation as determined by the organ procurement
organization.
If a prospective donor made an
anatomical gift under Section 5 or the prospective donor’s family contemplates
making an anatomical gift under Section 9 and the prospective donor signed an
advance health-care directive or declaration expressing the intent to have life
support systems withdrawn, a potential conflict arises between that intent and
the need to administer certain measures to ensure the medical suitability of
any part that could be the subject of an anatomical gift. For example, the
prospective donor may have expressed the intent to have a respirator withdrawn
in a declaration, yet it may be necessary to continue a respirator to assure
the medical suitability of a donated part.
If this conflict exists, it becomes
necessary to determine the prospective donor’s actual or likely intent to
resolve it. Of course, if the prospective donor is able to do so, the
prospective donor’s decision controls. If the prospective donor is unable to
resolve the conflict, it is resolved by the prospective donor’s agent. If there
is no agent, the conflict is resolved by another individual authorized by other
law to make health-care decisions on the prospective donor’s behalf. While the
consultation occurs, measures necessary to ensure the medical suitability of
the part shall continue to be administered unless the administration would be contraindicated by appropriate end of life care.
The decision of the prospective
donor, agent, or other individual whether or not to withdraw the life support
system is final. This process recognizes that it is the intent of the
prospective donor as determined by the prospective donor or those designated by
the prospective donor or by law that is paramount, even though a decision to
withdraw life support may result in the loss of parts for transplantation or
therapy.
The conflict should be resolved as
expeditiously as possible. Furthermore to assist in resolving the conflict and
providing the decision maker with necessary medical information, the decision
maker shall consult with the prospective donor’s attending physician,
presumably about all medical matters relating how the continued administration
or withdrawal of the measures would affect the patient. Any consultation may
also include the appropriate procurement organization and any other person
authorized under Section 9 to make an anatomical gift. The procurement
organization presumably provides information relating to why the continued
administration of the measure is necessary, the length of time they would be
necessary, and other relevant information.
SECTION 22. COOPERATION BETWEEN
[CORONER] [MEDICAL EXAMINER] AND PROCUREMENT ORGANIZATION.
(a) A [coroner] [medical examiner]
shall cooperate with procurement organizations to maximize the opportunity to
recover anatomical gifts for the purpose of transplantation, therapy, research,
or education.
(b) If a [coroner] [medical
examiner] receives notice from a procurement organization that an anatomical
gift might be available or was made with respect to a decedent whose body is
under the jurisdiction of the [coroner] [medical examiner] and a post-mortem
examination is going to be performed, unless the [coroner] [medical examiner]
denies recovery in accordance with Section 23, the [coroner] [medical examiner]
or designee shall conduct a post-mortem examination of the body or the part in
a manner and within a period compatible with its preservation for the purposes
of the gift.
(c) A part may not be removed from
the body of a decedent under the jurisdiction of a [coroner] [medical examiner]
for transplantation, therapy, research, or education unless the part is the
subject of an anatomical gift. The body of a decedent under the jurisdiction of
the [coroner] [medical examiner] may not be delivered to a person for research or
education unless the body is the subject of an anatomical gift. This subsection
does not preclude a [coroner] [medical examiner] from performing the
medicolegal investigation upon the body or parts of a decedent under the
jurisdiction of the [coroner] [medical examiner].
Comment
This section includes a number of
provisions designed to allow for the cooperation of procurement organizations
and [coroners] [medical examiners] in obtaining bodies and parts that otherwise
are the subject of an anatomical gift. Unlike prior law, this section does not
empower [coroners] [medical examiners] to make an anatomical gift of the body
or parts of a decedent. However, and although quite rare, if the [coroner]
[medical examiner] is the person with authority to dispose of the decedent’s
body and has the priority to make a gift under Section 9, the [coroner]
[medical examiner] could make an anatomical gift under Section 10.
SECTION 23. FACILITATION OF
ANATOMICAL GIFT FROM DECEDENT WHOSE BODY IS UNDER JURISDICTION OF [CORONER]
[MEDICAL EXAMINER].
(a) Upon request of a procurement
organization, a [coroner] [medical examiner] shall release to the procurement
organization the name, contact information, and available medical and social
history of a decedent whose body is under the jurisdiction of the [coroner]
[medical examiner]. If the decedent’s body or part is medically suitable for
transplantation, therapy, research, or education, the [coroner] [medical
examiner] shall release post-mortem examination results to the procurement
organization. The procurement organization may make a subsequent disclosure of
the post-mortem examination results or other information received from the
[coroner] [medical examiner] only if relevant to transplantation or therapy.
(b) The [coroner] [medical examiner]
may conduct a medicolegal examination by reviewing all medical records,
laboratory test results, x-rays, other diagnostic results, and other
information that any person possesses about a donor or prospective donor whose
body is under the jurisdiction of the [coroner] [medical examiner] which the
[coroner] [medical examiner] determines may be relevant to the investigation.
(c) A person that has any
information requested by a [coroner] [medical examiner] pursuant to subsection
(b) shall provide that information as expeditiously as possible to allow the
[coroner] [medical examiner] to conduct the medicolegal investigation within a
period compatible with the preservation of parts for the purpose of
transplantation, therapy, research, or education.
(d) If an anatomical gift has been
or might be made of a part of a decedent whose body is under the jurisdiction
of the [coroner] [medical examiner] and a post-mortem examination is not
required, or the [coroner] [medical examiner] determines that a post-mortem
examination is required but that the recovery of the part that is the subject
of an anatomical gift will not interfere with the examination, the [coroner]
[medical examiner] and procurement organization shall cooperate in the timely
removal of the part from the decedent for the purpose of transplantation,
therapy, research, or education.
(e) If an anatomical gift of a part
from the decedent under the jurisdiction of the [coroner] [medical examiner]
has been or might be made, but the [coroner] [medical examiner] initially
believes that the recovery of the part could interfere with the post-mortem
investigation into the decedent’s cause or manner of death, the [coroner]
[medical examiner] shall consult with the procurement organization or physician
or technician designated by the procurement organization about the proposed
recovery. After consultation, the [coroner] [medical examiner] may allow the
recovery.
(f) Following the consultation under
subsection (e), in the absence of mutually agreed-upon protocols to resolve
conflict between the [coroner] [medical examiner] and the procurement
organization, if the [coroner] [medical examiner] intends to deny recovery, the
[coroner] [medical examiner] or designee, at the request of the procurement
organization, shall attend the removal procedure for the part before making a
final determination not to allow the procurement organization to recover the
part. During the removal procedure, the [coroner] [medical examiner] or designee
may allow recovery by the procurement organization to proceed, or, if the
[coroner] [medical examiner] or designee reasonably believes that the part may
be involved in determining the decedent’s cause or manner of death, deny
recovery by the procurement organization.
(g) If the [coroner] [medical
examiner] or designee denies recovery under subsection (f), the [coroner]
[medical examiner] or designee shall:
(1) explain in a record
the specific reasons for not allowing recovery of the part;
(2) include the specific
reasons in the records of the [coroner] [medical examiner]; and
(3) provide a record
with the specific reasons to the procurement organization.
(h) If the [coroner] [medical
examiner] or designee allows recovery of a part under subsection (d), (e), or
(f), the procurement organization, upon request, shall cause the physician or
technician who removes the part to provide the [coroner] [medical examiner]
with a record describing the condition of the part, a biopsy, a photograph, and
any other information and observations that would assist in the post-mortem
examination.
(i) If a [coroner] [medical
examiner] or designee is required to be present at a removal procedure under
subsection (f), upon request the procurement organization requesting the
recovery of the part shall reimburse the [coroner] [medical examiner] or
designee for the additional costs incurred in complying with subsection (f).
Legislative
Note: Section 23 could be
incorporated into the provisions of the state’s code where the provisions
relating to a coroner or medical examiner are codified rather than included in
this act. If codified in that manner, the definitions in Section 2 of
“anatomical gift”, “donor”, “eye bank”, “organ procurement organization”,
“part”, “procurement organization”, “prospective donor” (first sentence only),
“tissue”, and “tissue bank” also should be included.
Comment
This section is new. It was
developed in extensive discussions among the drafting committee, the
procurement organizations, medical professionals, and the trade group for the
medical examiners. It is in accord with the policy guidance articulated by the
National Association of Medical Examiners. Copies of its policies can be
obtained by writing to the National Association of Medical Examiners, 430 Pryor Street SW, Atlanta, GA 30312.
SECTION 24. UNIFORMITY OF
APPLICATION AND CONSTRUCTION. In applying and construing
this uniform act, consideration must be given to the need to promote uniformity
of the law with respect to its subject matter among states that enact it.
SECTION 25. RELATION TO
ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This
act modifies, limits, and supersedes the Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify,
limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or
authorize electronic delivery of any of the notices described in Section 103(b)
of that act, 15 U.S.C. Section 7003(b).
SECTION 26. REPEALS. The following acts and parts of acts are
repealed:
(1) [Uniform Anatomical Gift Act];
(2)
(3)
Comment
Many states have related laws that
should not be repealed but should remain in effect, such as: donor registry
provisions; donor awareness programs; Transplant Councils; and licensing
provisions for procurement organizations and health care providers. The state
may also have regulatory and other law that applies to the subject matter of
this [act] that should remain in place. However, it is highly desirable that
the core provisions of the [act] be uniform among states as there is very
little time available to timely prepare, possibly transport across state lines,
and transplant life-saving organs, let alone assess and comply with significant
variations of state law.
SECTION 27. EFFECTIVE DATE. This [act] takes effect ____.