Meeting Draft with 1987 Act)
DRAFT
FOR DISCUSSION ONLY
ACT (1987)
________________________________________________________
NATIONAL
CONFERENCE OF COMMISSIONERS
APPROVED AND RECOMMENDED FOR ENACTMENT
MEETING IN ITS NINETY‑SIXTH YEAR
IN
JULY 31 ‑
With Prefatory Note and Comments
Approved by the American Bar Association
________________________________________________________
WITHOUT PREFACTORY NOTE AND COMMENTS
NATIONAL CONFERENCE OF COMMISSIONERS
______________________________________________________________________________
The ideas and conclusions set forth in this
draft, including the proposed statutory language and any comments or reporter=s notes, have not been passed upon by the
National Conference of Commissioners on
DRAFTING COMMITTEE FOR REVISED UNIFORM ANATOMICAL GIFT ACT (1987200_)
The Committee that acted forappointed by and representing the National Conference of Commissioners on Uniform State
Laws in preparing therevising this Uniform Anatomical Gift Act (1987) was as follows:consists of the following individuals:
GLEE
S. SMITH,
MARY
JOAN DICKSON, Office of Legislative Services, State House
Annex,
RONALD
W. DEL SESTO, 5th Floor,
ROBERT
G. FREY,
DAVID
T. PROSSER, JR., Room 335B North,
ROBERT
E. SULLIVAN, 112 Hillcrest Loop,
WILLIAM
H. WOOD,
CARLYLE
C. RING, JR.,
JOHN FOX
PHILLIP CARROLL, 120 EastE.
FRANK
W. DAYKIN,
JOSEPH
M. DONEGAN,
DAVID
ENGLISH,
GAIL
H. HAGERTY,
SHELDON
F. KURTZ, University of Iowa College of Law, Iowa City, IA 52242, Reporter
JAMES
C. McKAY,
DAVID
G. NIXON, 2340 Green
ARTHUR
H. PETERSON,
GLEE
S. SMITH,
JACK
DAVIES,
WILLIAM J.
PIERCEWILLIAM H.
HENNING, University of Michigan Law School, Ann Arbor, MI 48109,Alabama, School of Law, Box 870382, Tuscaloosa, AL
35487-0382, Executive Director
CARL
H. LISMAN,
Division D (Member Ex Officio)
TOM
MARTIN DAVIS, 3000
ROBERT
G. BEVERLY, 2054 State Capitol,
BROCKENBROUGH
LAMB, JR., 1200
Advisor to Special Committee on
Uniform Anatomical Gift Act (1987)
AMERICAN BAR ASSOCIATION ADVISORS
ROBERT KATZ,
SANDRA MALISZEWSKI,
MARTIN
D. BEGLEITER, American Bar Association
Final, approved copies of this Act and copies of all Uniform and Model Acts and other printed matter issued by the ConferenceCopies of the Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
REVISED UNIFORM ANATOMICAL GIFT ACT (1987200_)
SECTION 4. AMENDING
OR REVOKING ANATOMICAL GIFTS..................................... 8
SECTION 5. REFUSAL
TO MAKE ANATOMICAL GIFT...................................................... 8
SECTION 6. PRECLUSIVE EFFECT OF AMENDMENT, REVOCATION,
OR REFUSAL 8
SECTION 7. MAKING,
REVOKING, AND OBJECTING TO ANATOMICAL GIFTS BY OTHERS 9
SECTION 10. PERSONS
WHO MAY BECOME DONEES................................................... 14
SECTION 12. RIGHTS
AND DUTIES OF PROCUREMENT ORGANIZATONS AND DONEES 16
SECTION 13.
COORDINATION OF PROCUREMENT AND USE...................................... 17
SECTION 14.
SECTION 18.
UNIFORMITY OF APPLICATION AND CONSTRUCTION........................ 19
SECTION 19.
ELECTRONIC RECORDS AND SIGNATURES............................................ 19
REVISED
UNIFORM ANATOMICAL GIFT ACT (200_)
SECTION 1. SHORT TITLE. This [act] may be cited as the ARevised
Uniform Anatomical Gift Act (200_).@
SECTION 1. SECTION 2. DEFINITIONS. As used in this [Actact]:
(12) " “Anatomical
gift"” means a donation of all or part of a human body to take
effect upon or after death.
(23) " “Decedent"” means a deceased individual andwhose body or part is the source of an anatomical
gift for transplantation, therapy, research, or educational purposes. The term includes a stillborn infant or fetus.
(34) " “Document of gift" means a card,” means a [donor] card or other record used to
make an anatomical gift. The term includes a will
and a
statement or symbol attached to or imprinted on a motor vehicle operator's or chauffeur's license, a will,
or other writing used to make an anatomical gift.license
to operate a vehicle, identification card issued by a state, or a donor
registry.
(5) “Donee” means a
person to whom an anatomical gift has been made.
(4)
"Donor" means an individual who makes an anatomical gift of
all or part of the individual's body. (5) "Enucleator"(8)
“Enucleator” means an individual who is qualified and trained by an organization that is [licensed]
[certified] by the [State
Board of Medical Examinersaccredited] [regulated] [under federal or state law] to remove or process eyes or parts of eyes.
(610) " “Hospital"” means a facility licensed, accredited, or approved as a
hospital under the law of any state or a facility operated as a hospital by the
United States government, a state, or a subdivision of a state.
(11) “Organ procurement organization” means a
person designated by the Secretary of Health and Human Services pursuant to the
laws of the
(12) “Part” means an organ, eye, or tissue.
(813) "“Person"” means an individual, corporation, business trust, estate,
trust, partnership, association,
joint venture, association, government, or governmental subdivision or, agency or instrumentality, or any other legal or commercial entity.
(914) "“Physician" or "surgeon"” means an individual licensed or otherwise authorized
to practice medicine and
surgery [or osteopathy and surgery] under the lawslaw of any
state.
(1015)
" “Procurement organization" means a person licensed, accredited, or approved
under the laws of any state for procurement, distribution, or storage of human
bodies or parts”
means an eye bank, organ procurement organization, or tissue bank.
(A) to execute or
adopt a tangible symbol with the present intent to authenticate a record; or
(1120) " “State"” means a state, territory, or possession
of the
(1221) " “Technician"” means an individual who is [licensed] [certified] by the [State Board of Medical
Examiners] to remove or process a qualified
and trained by an organization that is [accredited] [licensed] [regulated]
[under federal or state law] to remove or process a body
part.
(22) “Tissue bank” means a
person engaged in the recovery, screening, testing, processing, storage, or
distribution of human tissue that is [licensed] [accredited][regulated][under
federal or state law].
SECTION 2. 3. MAKING, AMENDING, REVOKING, AND REFUSING TO MAKE ANATOMICAL GIFTS BY INDIVIDUAL.
(a) An
(1) the individual who, if the individual
is at least [18] years of age may
(i) make an anatomical gift for any of the purposes stated in Section 6(a),
(ii) limit an anatomical gift to one or more of those purposes, or (iii) refuse
to make an anatomical gift.[or an emancipated minor];
(4) the [guardian] of the
person of the individual.
(b) An anatomical gift may be made only by
a document of gift[donor] card or other record signed by the donor. person making the gift. If the donorperson cannot sign, the document of gift the [donor] card or other record, the [donor] card
or other record must be signed by anotheron the person’s behalf by an individual and acting at the person’s direction and by
two witnesses, allboth of whom
have signed at the direction
and in the presence of the donor and of each other, at the request of that individual and state that it has been so signed.
(c) If
a document of gift is attached to or imprinted on a donor's motor vehicle
operator's or chauffeur's license, the document of gift must comply with
subsection (b)(c) A donor may make an
anatomical gift by authorizing the [motor vehicle department] to imprint on the
donor’s license to operate a vehicle or state-issued identification card a
statement or symbol indicating that the donor has made an anatomical gift.
Revocation, suspension, expiration, or cancellation of the donor’s license
or card does not invalidate the anatomical
gift.
(d) A document of gift may designate a particular
physician or surgeon to carry out the appropriate procedures. In the absence of a designation or if the
designee is not available, the donee or other
person authorized to accept the anatomical gift
may employ or authorize any physician, surgeon, technician, or enucleator to
carry out the appropriate procedures.
(e) A
donor may make an anatomical gift by the donor’s will. An anatomical gift made by a
donor’s will takes effect upon the donor’s death of
the testator, whether or not the will is
probated. If, after death, the will is declared invalid
for testamentary purposes, the validity of If the will
is invalidated, the anatomical gift is unaffected. not invalidated.
(f) A donor may amend or revoke an anatomical
gift, not made by will, only by:
(2) an
oral statement made in the presence of two individuals;
SECTION 4. AMENDING OR
REVOKING ANATOMICAL GIFTS.
(2) a later-dated
document of gift that revokes or amends a previous anatomical gift or
a portion of a gift either expressly or by inconsistency.
(3)(b A donor may also amend or revoke an anatomical
gift, not made by will, by any form of
communication during a terminal illness or injury addressed to a physician or surgeon; orat least two other
individuals who are at least [18] years of age.
(gc) The A donor ofwho makes an anatomical gift made
by will may amend or revoke the gift in the manner provided for amendment or
revocation of wills, or asthe manner provided in subsection (fa).
SECTION 5. REFUSAL TO MAKE ANATOMICAL
GIFT.
(ia) An individual may refuse to make an anatomical
gift of the individual'’s body or any part by (i) a writinga signed in
the same manner as a document of gift, (ii)record or a
statement or symbol attached to or imprinted on a donor's motor vehicle operator's or chauffeur's
license, or (iii) any other writing used to identify the individual as refusing to make an
anatomical gift. During alicense to operate a
vehicle or an identification card issued by a state or on a donor registry.
During the individual’s terminal illness or injury, the refusal may be an oral statement or other form
of communicationby
any form of communication addressed to two or more other individuals who are at
least [18] years of age.
(b) An individual who has refused to make an anatomical gift
may amend or revoke the refusal in the same manner as provided in subsection
(a).
SECTION 6. PRECLUSIVE EFFECT OF AMENDMENT, REVOCATION,
OR REFUSAL.
(d) In the absence of
contrary indications by the donor or other person authorized to make
an anatomical gift under Section 3:
(j) In the absence of contrary indications by the
donor,1) an anatomical gift of a part is neither a refusal to give
other parts nor a limitation on the making of an anatomical gift under Section 3 or on a removal
or release of other parts under Section 4.under Section 7, and
(k) In the absence of contrary indications by the
donor, a
(2) a revocation
or or amendment of of an
anatomical gift is not a a refusal to make anotheran anatomical
gift at a later time.
If the donor intends a revocation to be a refusal to make an anatomical
gift, the donor shall make the refusal pursuant to subsection (i).
SECTION 7. MAKING, REVOKING, AND OBJECTING TO ANATOMICAL GIFTGIFTS BY A LIVING DONOROTHERS.
SECTION 3. MAKING, REVOKING, AND OBJECTING TO ANATOMICAL
GIFTS,
BY OTHERS.
(a) Any member
of the following classes of persons, in the
order of priority listed, may make an anatomical gift
of all or a part of the decedent's body for an authorized purpose, unless the
decedent, at the time of death, has made an unrevoked refusal to make that
anatomical gift:
(a) Subject to subsection
(c) and except as otherwise provided in Section 6, in the order of priority listed
any member
of the following classes of persons who is
reasonably available, or, if there is more than one member of a class listed in subsections (1) , (3), (4),
(5), (6), (7) or (8), a majority of the
members of the class who are reasonably available, may make an anatomical gift
of all or any part of a decedent’s body for transplantation, therapy, research,
or education:
(1) an individual who was
acting as the agent of the decedent at the time of death;
(2) the spouse of the decedent;
(2) an ;
(3) adult son or
daughter of the children
of the decedent;
(4) parents of the decedent;
(4) an ;
(5) adult brother or
sister of the siblings
of the decedent;
(5) a
grandparent of the decedent; and
(6) a
guardian of the person of the decedent at the time of death.
(b) An anatomical gift may not be made by a
person listed in subsection (a) if:
(1) a
person in a prior class is available at the time of death to make an anatomical
gift;
(3) the
person proposing to make an anatomical gift knows of an objection to making an
anatomical gift by a member of the person's class or a prior class.;
(6) adult grandchildren of the decedent;
(7) grandparents of the decedent;
(8) a person who was acting as the [guardian] of
the person of the decedent at the time of death;
(10) any other person having the authority to
dispose of the decedent's body.
(cb)
An anatomical gift by a
person authorized under subsection (a) mustmay only be
made by (i) a document of gift signed by the person or (ii)making the person'gift or that person’s telegraphic, recorded telephonic, or other recorded
message, or otherby another form of oral
communication from the person that
is contemporaneously reduced to writinga record and
signed by the recipientdonee.
(d) An
(d) Subject to subsection (e), an anatomical gift by a person authorized under subsection
(a) may be revoked by any member of the same or a prior class who is reasonably available. If there is more than
one member of the prior class who is reasonably available, the gift is revoked
if a majority of the members of the class object to the making of the
anatomical gift or the members are equally divided whether to make an
anatomical gift.
(e) A revocation under
subsection (d) is effective only if, before procedures have begun for the removal ofto remove a
part from the body of the decedent,'s body or surgically prepare
the recipient, the donee or the
physician, surgeon, technician, or enucleator removing the part knows of the revocation.or preparing the recipient
actually knows of the revocation.
(f) For purposes of this section, if
a person having priority to make or refuse to make an anatomical gift is unwilling to make a
decision in a reasonably timely manner, the person is deemed not to be
reasonably available.
SECTION 4. AUTHORIZATION BY [CORONER] [MEDICAL EXAMINER]
OR [LOCAL PUBLIC HEALTH OFFICIAL].
(1) the
official has received a request for the part from a hospital, physician,
surgeon, or procurement organization;
(3) the
official does not know of a refusal or contrary indication by the decedent or
objection by a person having priority to act
as listed in Section 3(a);
(5) the
removal will not interfere with any
autopsy or investigation;
(6) the
removal will be in accordance with accepted medical standards; and
(7)
cosmetic restoration will be done, if appropriate.
SECTION 8. COOPERATION
BETWEEN [CORONER][MEDICAL EXAMINER] AND PROCUREMENT ORGANIZATIONS AND DONEES.
(a) A [coroner] [medical
examiner] and a
procurement organization shall collaborate to
maximize the opportunity to recover parts for the purposes of transplantation,
therapy, research, and education.
(e) If an anatomical gift has been made of an organ from a
decedent whose body is within the jurisdiction of a [coroner] [medical
examiner] and no autopsy is required, or the [coroner] [medical examiner]
determines that an autopsy is required but that the recovery of the organ will not interfere with the
autopsy, the [coroner] [medical examiner] and the organ procurement
organization shall collaborate in the timely removal of the organ from a
decedent for purposes of transplantation or therapy.
(g) If, pursuant to
subsection (f), a [coroner][medical examiner] is required to be present at an
autopsy, the organ procurement organization requesting the recovery of the
organ shall reimburse the [coroner][medical examiner], upon request, for the actual costs incurred in performing
the duty specified in subdivision (f).
Subsection (b) is a
companion provision to subsection (a) to cover similar situations but in cases
where the [coroner] [medical examiner] is not authorized to act. Under both subsections, the removal and
release is limited to transplant or therapeutic purposes.(h)
A [coroner][medical examiner] shall release, upon request of a procurement organization,
the name, contact information, available medical and social history, and
autopsy results relating to the death of a deceased individual in the
[coroner’s][medical examiner’s]
jurisdiction if the
release will not interfere with an [examination or
investigation][autopsy].
SECTION 5. ROUTINE INQUIRY AND REQUIRED REQUEST; SEARCH
AND NOTIFICATION.
(a) The following persons shall make a reasonable search for a
document of gift or other information identifying the bearer as a donor
(1) a law enforcement officer, fireman, paramedic, or other
emergency rescuer finding an individual who the searcher believes is dead or
near death; and
(2) a hospital, upon the admission of anthe
individual at or near the time of death, if there is not immediately available
any other source of that information.
(db) If a document of gift or evidence of refusal
to make an anatomical gift is located by the search required by subsection (ca)(1), and the individual or bodydeceased individual
to whom it relatesis related is taken to a hospital, the hospital must be notified of the contents and the document or other evidence must be sent to the hospital by the person who located the
document of gift or evidence.
(fc)
A person who fails to discharge the duties
imposed by this section is not subject to criminal or civil liability but is
subject to appropriate administrative sanctions.
SECTION 6. 10. PERSONS WHO MAY BECOME DONEES;
PURPOSES FOR WHICH ANATOMICAL GIFTS MAY BE MADE.
(ab)
The following persons may becomebe designated as
donees of anatomical gifts for
the purposes stated:
(1) a hospital, physician,
surgeon, or procurement organization, for transplantation, therapy, medical or
dental education, research, or advancement of medical or dental science(1)
an individual designated by the person making the anatomical gift if the
anatomical gift is of a part for transplantation or therapy needed by the
individual;
(2) an appropriate
procurement organization selected by the donor; and
(3) a hospital, accredited medical or dental
school, college, or university for education, research, advancement of medical or dental science; oror research or any other
person participating in education or research involving the use of human bodies
or parts.
(3) a
designated individual for transplantation or therapy needed by that individual.
(b) An
anatomical gift may be made to a designated donee or without designating a
donee. If a donee is not designated or
if the donee (e) If a donee
determined under subsections (b) through (d) is not available to accept an anatomical gift or rejects the anatomical gift, the donee of the anatomical
gift may be accepted by any
hospitalis any
appropriate procurement organization or hospital, accredited medical or dental
school, college, or university for education, or research or any other person
participating in education or research involving the use of human bodies or
parts.
(g) If the donee
actually knows of the decedent's refusal or contrary indications to make an
anatomical gift or that an
anatomical gift by a member of a class having priority to act is opposed by a
member of the same class or a prior class under Section 3(a), the donee may not
accept the anatomical gift.
SECTION 7. 11. DELIVERY OF DOCUMENT OF GIFT.
(a) Delivery of a document of gift during the donor's lifetime of
the individual whose body or part is the subject of the anatomical gift is not required for the validity of an anatomical gift.
(b) If
an anatomical gift is made to a designated donee, the document of gift, or a
copy, may be delivered to the donee to expedite the appropriate procedures
after death. The document of gift, or a
copy, may be deposited in any hospital, procurement organization, or
registry office that accepts it for safekeeping or for facilitation of
procedures after death. On request of an
interested person, upon or after the donor's death, the person in possession
shall allow the interested person (b) Upon or after a
decedent’s death, any person in possession of a document of gift or a record
evidencing a refusal to make an anatomical gift with respect to the decedent
shall allow any person who is authorized to make or object to the making of an
anatomical gift under this [act] to examine or copy the document of gift.
SECTION 8. 12. RIGHTS AND DUTIES AT DEATH. OF PROCUREMENT ORGANIZATONS
AND DONEES.
(a) A procurement organization
may conduct any reasonable examination necessary to assure the medical
suitability of a part that is the subject of a prospective anatomical gift for
transplantation or therapy after a referral from a hospital.
(a)
Rights of a donee created by(c) An examination under
subsection (a) or (b) includes an examination of all medical records of the
individual whose body or part is the subject of an anatomical gift or a
prospective anatomical gift.
(d) Subject to Section 8,
rights of a donee of an anatomical gift are superior to rights of others except with respect to autopsies
under Section 11(b). . A donee may
accept or reject an anatomical gift. If a donee accepts an anatomical gift of an
entire body, the donee, subject to the terms of the gift or to this [act],
may allow embalming and use of the body in funeral services. If the gift is of a part of a body, the
donee, upon the death of the donordecedent and before embalming, shall cause the part to be removed
without unnecessary mutilation. After removal
of the part, custody of the remainder of the body vests in the person under
obligation to dispose of the body. (b) The time of
death must be determined by a physician or surgeon who attends the donor at
death or, if none, the physician or surgeon who certifies the death.
(e)
Neither the physician or
surgeon who attends the donordecedent at
death nor the physician or
surgeon who determines the time of the decedent’s death may participate in the procedures for removing or
transplanting a part unless
the document of gift designates a particular physician or surgeon pursuant to
Section 2(d).
(cf) If there has been
an anatomical gift, a technician may remove any donated parts and an enucleator
may remove any donated eyes or parts of eyes, after determination of death by a physician or
surgeon. from
the decedent.
SECTION 9. 13. COORDINATION OF PROCUREMENT AND USE. . Each hospital in this Statestate, after
consultation with other hospitals and procurement organizations, shall
establish agreements or affiliations for coordination of procurement and use of
human bodies and parts.
SECTION 10. 14.
(a) A(a)
Except as otherwise provided in subsection (b), if removal of a part from a
decedent is
intended to occur after the decedent’s death, a person may not knowingly, for
valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to
occur after the death of the decedent.
(b)
Valuable consideration does not include(b)
A person may make reasonable payment for the removal, processing, disposal,
preservation, quality control, storage, transportation, or implantation of a
part.
(c) A person who
violates this section is guilty of a [felony] and upon conviction is subject to
a fine not exceeding [$50,000] or imprisonment not exceeding [five] years, or
both.
SECTION 15. LIABILITY.
(b) The provisions of this [Act] are subject to
the laws of this State governing autopsies.
(a) Subject
to subsection (c) A hospital,
physician, surgeon, [coroner], [medical examiner], [local public health
officer], enucleator, technician, or other person,, a person
who acts in accordance with this [Actact] or with
the applicable anatomical gift law of another state [or a foreign country] or
attempts in good faith to do so is not liable for thatthe act in a
civil action or criminal proceeding. or subject to discipline for unprofessional
conduct.
(d) An
individual who makes(b) Neither the person
making
an anatomical gift pursuant to
Section 2 or 3 and the individual'nor the decedent’s
estate are notis liable for any injury or damage that may result from the
making or the use of the an anatomical
gift.
SECTION 15. SHORT TITLE.
This [Act] may be cited as the "Uniform Anatomical Gift Act
(1987)."
SECTION 16. CHOICE OF LAW.
(a) A document of gift is
valid if executed in accordance with:
(2) the laws of
the place where it was executed; or
SECTION 17. TRANSITIONAL
PROVISIONS.. This [act] applies to a document of
gift, revocation, or refusal to make an anatomical gift made before, on, or
after [the effective date of this [act]].
SECTION 18. 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 19. ELECTRONIC RECORDS AND
SIGNATURES.. 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 20. REPEALS. . The following acts and parts of acts are repealed:
SECTION 17. 21. EFFECTIVE DATE. . This [Actact] takes effect ____________________.