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D R A F T
FOR DISCUSSION ONLY
REVISED
UNIFORM ANATOMICAL GIFT ACT (200_)
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
November 2005 Meeting
Changes Shown in Strike and Score
WITH PREFATORY NOTE AND COMMENTS
Copyright ©2005
By
NATIONAL CONFERENCE OF
COMMISSIONERS
ON UNIFORM STATE LAWS
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 Uniform State Laws or the Drafting
Committee. They do not necessarily
reflect the views of the Conference and its Commissioners and the Drafting
Committee and its Members and Reporters.
Proposed statutory language may not be used to ascertain the intent or
meaning of any promulgated final statutory proposal.
DRAFTING COMMITTEE ON REVISED UNIFORM ANATOMICAL GIFT ACT (200_)
The Committee
appointed by and representing the National Conference of Commissioners on
Uniform State Laws in revising this Uniform Anatomical Gift Act consists of the
following individuals:
CARLYLE C. RING, JR., 1401
H St. NW, Suite 500, Washington, DC 20005,
Chair
JOHN FOX
ARNOLD, 714 Locust St., St.
Louis, MO 63101
JAMES M. BUSH, 3003 N. Central Ave., Suite 2600, Phoenix,
AZ 85012
PHILLIP CARROLL, 120 E.
Fourth St., Little Rock, AR 72201,
Enactment Plan Coordinator
JOSEPH M. DONEGAN, 1100
Valley Brook Ave., P.O. Box 790, Lyndhurst,
NJ 07071
DAVID M.
ENGLISH, University of Missouri-Columbia, School
of Law, Missouri Ave.
& Conley Ave., Columbia,
MO 65211
GAIL H. HAGERTY, 514 East
Thayer Ave., P.O. Box 1013, Bismarck,
ND 58502
JAMES C. MCKAY,
JR., Office of the Attorney General for the District of Columbia, 441 4th St. NW, 6th
Floor South, Washington, DC 20001
DAVID G. NIXON, 2340 Green Acres
Rd., Suite
12, Fayetteville,
AR 72703
ARTHUR H. PETERSON, P.O. Box 20444, Juneau, AK 99802
GLEE S. SMITH, P.O. Box
667, Lawrence, KS
66044
SHELDON F.
KURTZ, University of Iowa College of Law, 446 BLB, Iowa City, IA 52242, National
Conference Reporter
EX OFFICIO
HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President
JACK DAVIES, 687 Woodridge
Dr., Mendota Heights, MN 55118,
Division Chair
AMERICAN BAR ASSOCIATION ADVISORS
SANDRA MALISZEWSKI, 1425
EAB Plaza, Uniondale, NY 11556-1425, ABA Advisor
ROBERT A.
KATZ, Indiana
University School of Law-Indianapolis, 530 W. New York St., Room 320, Indianapolis, IN 46202-3225, ABA Section Advisor
EXECUTIVE DIRECTOR
WILLIAM H.
HENNING, University
of Alabama, School of Law, Box 870382, Tuscaloosa, AL 35487-0382,
Executive Director
Copies
of the Act may be obtained from:
NATIONAL
CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
211 E. Ontario Street, Suite 1300
Chicago, IL 60611
312-915-0195
www.nccusl.org
REVISED UNIFORM ANATOMICAL GIFT ACT (200_)
Prefatory Note
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 organ transplants become a viable option to save and meaningfully extend
lives.
The
first event was the development in the late 60s 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 functions, or
(2) irreversible cessation of all functions of the entire brain, including the
brain stem, is dead.”
Then,
shortly following Dr. Christian Barnard’s successful transplant of a heart in
November 1967, this Conference adopted the first Uniform Anatomical Gift Act
and it did it with only one reading in the summer of 1968. In short order, the
1967 Act was uniformly adopted by every jurisdiction. The most significant contribution of the ‘68
Act was to create a right to donate organs. This right was not legally
recognized at common law because of reluctance to find property rights in human
bodies or human remains. By creating the right to make an anatomical gift,
individuals became empowered to donate their organs or their loved one’s organs
to save the lives of others.
The
last event, occurring in 1972, was the development of immunosuppressive drugs
which 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. However, only
twenty-six (26) jurisdictions enacted the 1987 revision. Consequently, there is significant
non-uniformity between states with the 1968 Act and those with the 1987
revisions. Further, current state acts do not always comport with changes in
federal law adopted subsequent to the 1987 Act relating to the role of
hospitals and organ procurement organizations in securing organs for
transplantation.
Both the two previous anatomical gift
acts as well as this [act] adhere to the so-called “opt in” principle as its
default rule. Thus, an individual becomes an organ 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 that adopted in
many other developed countries, primarily in Europe.
In many European countries every individual is deemed to be an organ donor
unless that individual, or another person acting for that individual, “opts
out.” This other system is known as “presumed consent.” While the Commissioners
do not believe that many states would currently be interested in enacting a
presumed consent system, many of them believe that in time the concept of
presumed consent could receive a favorable reception in this country.
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 kidney or a
section of a liver) to a recipient, donations by living donors are not
treated in this [act], as distinct and difficult legal issues are raised by
living donations. Furthermore, and in common with the prior acts, this [act] is
largely focused on the procurement of organs as federal law controls the
allocation of procured organs. Provisions in this [act] relating to the
procurement of organs are intended to dovetail with federal law and policies.
A
majority of potential donors are candidates for donation of eye or tissue but
only a small percentage of potential donors die under circumstances that permit
organ donation. To procure organs, eyes,
and tissue for transplantation, a donor or potential donor must be declared
dead (see Uniform Determination of Death Act), and generally the donor’s body
must be kept on a respirator and life support until the organs are
procured. Pursuant to federal law, when
death is imminent or death occurs, the appropriate organ procurement
organization is notified of a potential donor or donor, and it begins to
develop a medical and family history to determine whether the dying or deceased
person is a suitable donor. If the dying
or deceased person is a suitable donor, these organizations check for evidence
of donation and seek, when necessary, consent to donation from authorized
persons. If a donation can be secured for organs, the organ procurement
organization will ascertain from the organ procurement and transplant network
whether there is a match for the organs on the national waiting list; arrange
teams of surgeons at both the donor and recipient hospitals; and arrange
transport; and effect the transplantation.
If eyes and tissue are donated, the appropriate procurement organization
procures the eye or portions of human eyes and/or other tissues and undertakes
steps to begin the screening, testing, processing, storage, or distribution of
the eye or portions of human eyes and/or other tissues as required for each
type of anatomical gift for transplantation.
All must be done expeditiously.
As of August 15, 2005), there
are 89,094 individuals on the waiting list for organs of which 62,685 need a
kidney and 17,457 a liver, with the remaining individuals waiting for a
pancreas, kidney and pancreas, heart, lung or intestine. There are in excess of
25,000 eye and tissue donors annually and in excess of 1,000,000 tissue and eye
transplants annually. While donations of eye and tissue are presently nearly
adequate, the need for eye and tissue transplants increases every year.
Recent technological innovations have
increased the types of organs that can be transplanted and the range of
individuals that can donate or receive an organ, thereby increasing the numbers
of organs available each year and the number of transplantations that occur
each year. Nonetheless, the number of
deaths for lack of available organs has also increased. While the Commissioners are under no illusion
that any anatomical gift act can fully supply the need for organs, they do
believe that any change that could increase the supply of organs and thus saves
lives is an improvement. This is all the
more true because in recent years the shortage in the supply has been partially
made up by the significant increase in the number of living donors who have
donated organs for transplantation. While organs from living donors are
laudable and often medically desirable from the recipient’s perspective,
obtaining organs from living donors places those donors at risk.
Transplantation occurs across state
boundaries and requires speed and efficiency.
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 both harmonize state law
with federal policy as well as to increase the manner in which anatomical gifts
can be made and respected. The
following summary highlights how this [act] attempts to accomplish these goals.
Section 2 incorporates new
definitions of organ procurement organizations, eye banks and tissue banks to
harmonize with federal law as necessary.
Section 4 expands the number of
persons who can 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 donors under age 18, and guardians. The
section also recognizes that it is appropriate that minors who can apply for a
driver’s license and mature minors who are capable of making health-care decisions
for themselves be empowered to make anatomical gifts.
Section 5 recognizes that since the adoption
of the prior anatomical gift acts 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. The section also
permits anatomical gifts by notation in a donor’s medical records.
Section 6 permits anatomical gifts
to be amended or revoked by the execution of a later-dated record or by
inconsistent documents of gifts. It also permits revocation by destruction of a
document of gift.
Section 7 permits an individual to
refuse to make an anatomical gift by a signed record, a notation on a driver’s
license or registry if permitted by the state motor vehicle department or
operator of the donor registry, or by a statement or symbol in the donor’s
medical records. This [act] does not require that a driver’s license or a donor
registry allow for individuals to register their refusal to be a donor. By permitting refusals, the [act] recognizes
the autonomy interest of an individual either to be or not to be an organ
donor.
Section 8 is intended to substantially
strengthen the respect due a decision to make or refuse to make an anatomical
gift. While prior laws provided that a donor’s anatomical gift was irrevocable,
it had been until quite recently a common practice for procurement organizations
to seek affirmation of that gift from a donor’s family. This could result in
unnecessary delays in the harvesting of organs as well as a reversal of a
donor’s donation decision. This [act] effectively dis-empowers families from
making or refusing to make 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 a donor’s family as
they have no ability to give it legally. 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 be focused more on what
procedures will be followed to carry out the donor’s wishes rather than on
seeking approval of the donation.
Section 9 expands the list of
persons who can make an anatomical gift following a decedent’s death where the
decedent was neither a donor nor had signed a record refusing to be a donor.
The expanded list includes persons acting as agents at the decedent’s death,
grandchildren, and close friends.
Section 10 makes no significant
changes from prior law.
Section 11 represents a complete
revision of the relationship of the coroner to the organ donation process.
Prior law 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 actions in which
the [coroner][medical examiner]’s actions were deemed to violate the property
rights of surviving family members, see, e.g., Brotherton v. Cleveland,
923 F.2d 477 (6th Cir. 1991), the Commissioners decided to delete
the provision. In lieu thereof, a series of new provisions have been included
relating to the relationship between the [coroner][medical examiner] and the
procurement organizations. The intent of these provisions is to 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. Rather, parts from a decedent can be the
subject of an anatomical gift only if an anatomical gift was made under Section
4 or Section 9 of this [act] .
Section 12 permits the search of the
personal effects of an individual who has died or is near death by an emergency
responder in order to determine if that individual has made or has refused to
make an anatomical gift. It also requires persons with access to the motor
vehicle registry to make a similar search and requires hospitals to search
donor registries.
Section 13 has been revised, in
part, to harmonize with federal law, particularly with respect to organs. Under
federal law, organs are allocated under the auspices of the Organ Procurement
and Transplant Network which presently subcontracts with United Network Organ
Sharing operating largely though its member organ procurement organizations.
When an organ donor dies, the donor’s organs, barring the rare instance of a
donation to a named individual, are donated to the organ procurement
organization for the service area in which the donor dies, to be allocated by
it either locally, regionally, or nationally in accordance with federal
policies. Thus, that organ procurement organization for the overwhelming number
of organ donations is the donee. For eyes, tissue and whole body donations,
donees can be the appropriate procurement organization, or a hospital,
accredited medical or dental school, college, university or other person
participating in education or research. In
the case of organ, tissue and eye donation, therefore, the donee is an
organization, not the recipient into whom the part is transplanted.
Prior law did not specifically deal
with who the donee of a part was when the document of gift merely expressed a
“general intent” to be an “organ donor.” This type of designation is common on
driver’s licenses and many donor cards. Section 13 provides that for such
general statements of intent, first, the parts may only be used for transplantation
or therapy and second,
that the donee is the appropriate organization procurement organization for
each part. Thus, organs are donated to the organ procurement organization, eyes
to the eye bank, and tissue to the tissue bank.
A general statement of intent to be
an organ donor does not result in the making of an anatomical gift for research
or education. More specific language is required to make such a gift.
The [act] provides that custody of a
decedent’s body if there is no donee or of decedent’s parts not used by a donee
for transplantation, therapy, research or education vests in the “person under
obligation to dispose of the body.” Typically that person will be someone in
the decedent’s family as determined by other law or by the terms of the document
of gift.
Section 13(g) prohibits any donee
from accepting an anatomical gift if the donee knows that the gift was not
validly made. For this purpose, however, if the donee ascertained there was a
document of gift from a donor registry or from the donor’s medical records, the
donee is also deemed to know of a refusal to make a gift if the refusal is on
the same donor registry or in the donor’s medical records for the same health
care provider in whose records the donation had been recorded. Again, nothing
in the [act] requires a donor registry to have a section to record refusals,
but if a donor registry elected to do so, then the donee should be required to
search the entire registry.
Lastly, Section 13(h) makes the
obvious explicit. Nothing in this [act] affects the allocation of parts by any
person acting under federal laws relating to the allocation of parts for
transplantation.
Section 15 also has been redrafted
to accord with federal law and particularly the federal rules relating to
referrals by hospitals to organ procurement organizations to determine whether
a person dead or near death is a potential donor. See 42 CFR § 482.45
(Condition of participation: Organ, tissue, and eye procurement). The right of
the procurement organization to inspect a patient’s medical records does not
violate HIPAA as a result of an express exemption in the applicable federal
regulations. 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.”)
Subsection (e) tracts prior law and
is designed to assure that no conflict of interest exists for a patient’s
treating physician where that physician is also treating another individual
whom may be in need of a transplant. 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 in this country, this section was included to address some public
misperceptions by making clear that
it should not be able to happen legally.
Section 17: To be provided.
Section 19 was included in this
[act] to facilitate interstate recognition of documents of gifts.
REVISED UNIFORM ANATOMICAL GIFT ACT
SECTION 1. SHORT TITLE. This [act] may be
cited as the Revised Uniform Anatomical Gift Act (200_).
SECTION 2. DEFINITIONS. As used in In
this [act]:
(1)
“Agent” means an individual authorized by:
(A)
a health-care power of attorney to make
health-care decisions on behalf of the principal; or,
(B)
an individual authorized by any other record to make an anatomical gift
on behalf of the principal.
(2)
“Anatomical gift” means a the donation of all or part of a
human body to take effect upon or after
the donor’s death.
(3)
“Decedent” means a deceased individual whose body or part is the source
of an anatomical gift for the purposes of transplantation, therapy,
research, or educational purposes. The term includes a stillborn
infant or fetus.
(4)
“Document of gift” 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 license to operate a vehicle, or identification card
issued by a state, or a donor registry, or the donor’s medical records.
(5)
“Donee” means a person to whom which an anatomical gift has been
made under Section 13.
(6)
“Donor” means an individual making who made an anatomical
gift of the individual’s part or body. The term includes a decedent.
(7)
“Donor registry” means a registry that provides for the making, amending
amendment, or revoking revocation of an anatomical gift or the
refusal to make an anatomical gift.
(8)
“Enucleator” means an
individual who is qualified and trained by an organization that is [licensed]
[accredited] [regulated] [under federal or state law] to remove or process eyes
or parts of eyes.
(9)
“Eye bank” means a person that is [licensed]
[accredited][regulated][under federal or state law] to engaged in
the recovery, screening, testing, processing, storage, or distribution of human
eyes or portions of human eyes that is [licensed] [accredited][regulated]
[under federal or state law].
(10) “Health-care provider” means an
individual licensed, certified, or otherwise authorized or permitted by law to
provide health care in the ordinary course of business or practice of a
profession. The term includes a physician.
(10)(11) “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.
(12) “Know” means to have actual
knowledge.
(11)(13) “Organ procurement organization” means a
person designated by the Secretary of Health and Human Services pursuant to the
laws of the United States
as an organ procurement organization.
(12)(14) “Part” means an organ, eye, or tissue of a
human being.
(13)(15) “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.
(14)(16) “Physician” means an individual authorized to
practice medicine [or osteopathy] under the law of any state.
(15)(17) “Procurement organization” means an eye bank,
organ procurement organization, or tissue bank.
(16)(18) “Reasonably available” 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.
(17)(18) “Recipient” means an individual into whom a
decedent’s part has been or is intended to be transplanted.
(18)(20) “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.
(19)(21) “Sign” means, with the present intent to
authenticate a record:
(A)
to execute or adopt a tangible symbol with the present intent to
authenticate a record; or
(B)
to attach or logically associate an electronic symbol, sound, or process
to or with a record with the present intent to authenticate the record.
(20)(22) “State” means a state of the United States,
the District of Columbia,
Puerto Rico, the United States Virgin Islands,
a federally recognized Indian tribe, or any territory or insular possession subject to the
jurisdiction of the United
States.
(21)(23) “Technician” means an individual who is
qualified and trained by an organization that is [accredited] [licensed]
[regulated] [under federal or state law] to remove or process a body part.
(22)(24) “Tissue bank” means a person that is
[licensed] [accredited] [regulated] [under federal or state law] to engaged
in the recovery, screening, testing, processing, storage, or distribution of
human tissue. that is [licensed] [accredited] [regulated] [under federal or
state law].
Comment
Under Section 4 of this [act] an
individual may make an anatomical gift of the individual’s parts. In addition
designated other persons may make an anatomical gift of the individual’s
organs. One of these persons is an “agent” of that individual (paragraph (1).
An agent, as defined in paragraph (1), may be so empowered in one of two ways.
The first is by a designation under a health-care power of attorney. This
statute, independent of any other law, empowers the agent acting under a health
care power of attorney to make an anatomical gift on behalf of a principal.
Therefore, it is not necessary that states adopting this [act] amend their
health-care power of attorney statutes to specifically empower agents to make
anatomical gifts on behalf of principals as this [act] empowers them to make
such gifts. On the other hand, a state may choose to do so in order that all of
the agent’s powers, including the power to make an anatomical gift, can be
found in one comprehensive statute. Even
though this [act] empowers the agent acting under a health-care power to act,
if the health-care power denies that power to the agent, the agent is not
empowered to make an anatomical gift on behalf of the principal. See Section 4(b).
An agent may also be designated by a
record, other than a health care power of attorney, that authorizes the agent
to make an anatomical gift on behalf of the principal. This would permit
individuals who wish to empower different persons to make health care decisions
and anatomical gift decisions to do so. In light of the definition of record,
this authority also could be expressed in a financial power of attorney.
This [act], in common with both the
‘68 and ‘87 versions, only applies to an “anatomical gift” that take effect
after death. Thus, an “anatomical gift” would not include a gift of an organ
made from a living donor to another living individual.
A “document of gift” (paragraph (4))
includes a will, other record, and a statement or symbol on either a license to
operate a vehicle or identification card issued by the state, a donor registry
(paragraph (7)), or a donor’s medical record. The prior versions of the act
referred to a motor vehicle operator’s or chauffeur’s license. Both of these continue
to be included within the phrase “license to operate a vehicle” but the phrase
also encompasses other licenses such as a state-issued motorcycle operator’s
license. While a donor card is a record, the reference to donor card has been
specifically retained because of the wide acceptance of that concept in our
culture.
A
statement or symbol on a license, card, registry, or medical record
is the 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. Nonetheless, potential donors should be
encouraged to make their gifts by license or 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(c) an anatomical gift can be made by a donor authorizing the person
maintaining a registry to include on the registry a statement or symbol that
the donor has made a gift. By adding a “donor
registry” to 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 at the time either the ‘68 or ‘87
versions of this act were adopted. Today, however, they have assumed increased
importance in the anatomical gift world and in time may come to dominant 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 registry provides for a
refusal to make an anatomical gift and this [act] does not require that they do
so. The operator of the 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 gift. To the extent that the donor
registry complies with the laws relating to electronic signatures the gift
would also meet the requirements of Section 4(a) of a signed record.
Although anatomical gifts can be
made by or on behalf of an individual from whom the donated part would be
removed at death, only the individual from whom the part is or would be removed
is a “donor” (paragraph (6)). A decedent whose body or part is the subject of
an anatomical gift is also a donor even though someone other than decedent
before or after the decedent’s death signed the document of gift. Thus “donor”
may in some cases refer to a living individual who made an anatomical gift or
on whose behalf an anatomical gift was made, or 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 can trump the ability of others to make
or revoke anatomical gifts on behalf of the donor. See Section 8.
The definition of “part” (paragraph
14) while shorter than the definition in the ‘87 Act is functionally the same
as all parts of the human body, including bones and fluids, are encompassed
within the definition.
The concept of “reasonably
available” (paragraph (18)) is based upon a similar concept in the Uniform
Health-Care Decisions Act. A decision to make an anatomical gift, particularly
of an organ, by persons, other than the donor, is extremely time sensitive.
Life-saving organs may be forfeited if persons with a priority to make a
post-death anatomical gift cannot be located to make a decision. Physical
presence, however, is not required in order to be “reasonably available.” A
person is “reasonably available” as long as the person can be contacted without
undue effort. Also, the concept assumes that a person is willing to act in a
timely manner to permit the successful recovery of organs. A person 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.” See Section 10(e).
SECTION
3. APPLICABILITY. 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]
Comment
Because this [act] applies to
documents of gifts executed before the [act’s] effective date, statements on a
driver’s license which are deemed only to be evidence of an intent to be a
donor now constitute actual words of donation and the license is a document of
gift.
SECTION 3 4. MAKING ANATOMICAL GIFTS WHO MAY MAKE
AN ANATOMICAL GIFT BEFORE
DECEDENT’S DEATH. (a) Subject
to Section 68, an anatomical gift of an individual’s body or part
for transplantation, therapy, research, or education may be made during the
life of the individual in the manner provided in Section 5 by:
(1) (a) the individual, if the individual is:
(1) at least [18]
years of age;
[(2) a minor otherwise authorized under
state law to make personal health-care decisions
or apply for a motor
vehicle license or permit.]
[(3) an emancipated minor];
(2) (b) an agent of the individual unless the power of
attorney to make health-care decisions or other record prohibits the agent from
making an anatomical gift;
(3) (c) a parent of the individual, if the individual is
under the age of [18] years [and not emancipated]; or
(4) (d) the [guardian] of the person of the individual.
Comment
Structurally, this [act] includes
within Sections 4 through 8 provisions that were included in Section 2 of the
‘87 act. Thus, Section 4 relates to who can make an anatomical gift before a
decedent dies, Section 5 relates to the manner in which an anatomical gift can
be made, Section 6 relates to the amending and revoking of an anatomical gift,
Section 7 relates to the refusal to make an anatomical gift, and Section 8
relates to the effect of gifts, amendments, revocations, and refusals 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 that
individual’s body or parts if that individual is at least
[18] years of age. This act, however, expands upon prior law in a number of
ways. First, the [act] recognizes that in many states individuals under the age
of 18 are permitted to make personal health care decisions. These individuals
are often referred to as “mature minors.” See, e.g., Cardwell v. Bectol, 724 S.W.2d 739 (Tenn. 1987); In re E.G., 549 N.E.2d 322 (Ill.
1990) (and cases cited there). The making of an anatomical gift is analogous to
the making of a health care decision; thus it is appropriate to permit such a minor
to make an anatomical gift. In many, if not most cases, these minors will also
include minors who, under state law, may apply for a driver’s license. Thus, if
a minor, when applying for a driver’s license, makes an anatomical gift by a
symbol or statement on a driver’s license, that minor would be a donor. There
would be no need for the minor to have the license reissued at age 18, assuming
the license had not otherwise expired, in order to continue to be a donor.
This section expands prior law in
other important respects. It permits anatomical gifts by an emancipated minor
and it expressly empowers an anatomical gift to be made on behalf of an
individual by that individual’s agent or by a parent, if that individual is
under the age of [18], or a guardian.
A gift by an agent, parent, or
guardian remains in effect until such time as amended or revoked by an agent,
parent, or guardian or the individual on whose behalf the gift was made. As a
example, if a parent makes a gift for a minor, the gift remains in effect until
such time as it is altered by the donor or by the donor’s agent or guardian.
However, under Section 6, an agents, parents, or guardians cannot refuse to
make an anatomical gift on behalf of their principals or wards. 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 health-care power of attorney is
authorized merely by that designation to make an anatomical gift on behalf of
the principal. If the principal does not wish to authorize the agent to make
that decision, the power would have to include language to expressly negate
that authority. On the other hand, 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.
SECTION 5. MANNER OF MAKING ANATOMICAL GIFT BEFORE DECEDENT’S DEATH.
(b)(a) An anatomical gift may be made by a [donor]
card or other record signed by the person making the gift. If the person making
the gift cannot sign the [donor] card or other record, the [donor] card or
other record must be signed on the person’s behalf by an individual acting at
the person’s direction and by at least
two witnesses, both of whom have signed at the request of that individual
the person, and the record must state that it has been so signed.
(b) An anatomical gift may be made by authorizing
the health care provider of the donor to enter into the donor’s medical records
a statement or symbol indicating that an anatomical gift has been made.
(c)
A donor may make an anatomical gift by authorizing the [insert
reference to motor vehicle department] to imprint on the donor’s license to
operate a vehicle or state-issued identification card issued by a
state 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 donor may make an anatomical gift by
authorizing any person who that maintains a donor registry to
include on the donor registry a statement or symbol that the donor has made an
anatomical gift.
(e)
A donor may make an anatomical gift by the donor’s
a will. An anatomical gift made
by a donor’s will takes effect upon the donor’s death whether or not the
will is probated. If the The
invalidation of the will is invalidated after the donor’s death
does not invalidate the anatomical gift. is not invalidated.
Comment
The execution formalities associated
with the making of an anatomical gift generally remain the same as under the
’87 act. However, in addition to the making of a 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 upon a donor registry or on the donor’s
medical records. The ‘87 act required an anatomical gift imprinted on a license
to be signed by the donor. This [act] does not expressly require a signature on
a license, a donor registry, or the donor’s medical records, although one or
more of these may actually have a signature to the extent they comply with the
laws relating to electronic signatures.
Donor registries were not
contemplated by the prior versions of this [act]. Since the promulgation of
those acts, numerous donor registries have been created under the auspices of
the state or private organizations. Nothing in this [act] either requires the
creation of a donor registry or mandates the content of a donor registry. For
example, the typical donor registry allows for the making of donations but not
the refusal to be an organ donor. This [act] does not require that a registry
provide an opportunity to refuse to be an organ donor.
Section 5(a) permits an anatomical
gift by a signed donor card or other record. Typically the person making an
anatomical gift will be able sign the record. In those cases where the person
making the gift is unable to sign the record, the signature can be made by an
individual acting at the request of the person making the donation. This
signature, however, must be witnessed by two witnesses acting at the request of
the person making the donation. Thus, if a donor cannot sign a record, it can
be signed by X if X and the two witnesses act at the donor’s request. In
addition, the record must state that it was signed and witnessed at the
person’s request. Section 5(a) is not limited to anatomical gifts by a donor.
For example, if a guardian for an adult makes a gift but cannot sign the
record, then the record can be signed by another and witnessed by two
witnesses, all of whom act at the guardian’s request.
Section 5(b) is new to the
anatomical gift laws. It permits an anatomical gift to be made by a statement
or symbol in the donor’s medical records without the necessity of the donor, or
other person making the gift, signing the record. The medical record becomes
the document of gift. See Section 2 (paragraph (4)). This section recognizes
that this particular document of gift needn’t be signed by the donor or other person
making the gift. Frequently, the decision to be an organ donor is made as a
result of conversations with the donor’s physician or other health care
provider. Making the gift effective by an entry in the medical records
facilitates the gift when the decision is made under those circumstances. Because
other laws exist to assure the integrity of medical records, no reason exists
to require a signature by the person making the gift. Of course, a person
signing a donor card could request a health care provider to include the card
in the donor’s medical records in much the same way as individuals have health
care powers inserted into their medical records.
Although this [act] would permit the making of an anatomical gift by a
statement or symbol in a donor's medical records, doctors are neither required
nor even encouraged to discuss organ donation with their patients. The decision
to become an organ donor is highly personal and not all encounters between
physicians and patients give rise to an appropriate occasion to consider organ
donation. For example, while it could be appropriate for a doctor to
discuss with organ donation with a patient in the context of a routine annual
physical, it might not be advisable to do so as a patient is being wheeled in
for surgery. Additionally, donors making gifts through their medical records
should also be encouraged to also make the gift by way of a driver's license or
donor registry.
Section 5(a) applies to all persons
making an anatomical gift under Section 4. On the other hand, subsections (c),
(d) and (e) apply only to donors. For donors there is, to some extent, an
overlap between the four sections as a record includes licenses, identification
cards, donor registries, and wills.
Typically an anatomical gift of a
part for transplantation or therapy is not made by a will. In fact, donors
would be ill-advised to make a gift by will as the terms of the will may not be
known in sufficient time to allow a successful recovery of organs. Clients who
make an anatomical gift of their parts by a will should be strongly encouraged
to make their wishes known by other means as well. On the other hand, some people 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, the
gift takes effect at the donor’s death and is valid even though the will is not
probated or is declared invalid.
While subsection (e) does not
expressly contemplate a will being signed for a donor by another, most statutes
of wills authorize a will to be signed on behalf of a testator under certain
conditions. See Uniform Probate Code § 2-502. Wills meeting those execution
formalities can also make an effective anatomical gift.
A decision was made in drafting this
[act] not to include specific forms for the making of an anatomical gift.
Rather, the drafting committee concluded that suggested forms consistent with
this [act] be included in these comments. These forms follow:
ANATOMICAL GIFT DONOR CARD
Pursuant to the Anatomical Gift Act, upon
my death, I hereby give (check all boxes applicable):
1.
[ ] Any needed parts (organs, tissues, or eyes);
(a) [
] Transplant or therapy only
(b) [
] Transplant, therapy, research, or education
2.
[ ] Only the following parts (organs, tissues, or eyes):
________________________________;
(a) [ ] Transplant or therapy only
(b) [ ] Transplant, therapy, research, or
education
3.
[ ] My body for research and education;
4. [ ] My body for the following purposes:
____________________________________
___________________
_________________________________________
Date of Birth
Signature of Donor or Other Person Making the Gift
INSTRUCTIONS
Check box 1 if the gift of any organ,
tissue or eyes is unrestricted and box 1(a) or 1(b) depending upon whether the
gift is for transplant or therapy only (a) or transplant, therapy, research, or
education (b).
Complete box 2 if the gift of a part is
restricted. For example, if the gift is restricted to specific organ(s),
tissue(s), or part(s) only, e.g., heart, cornea, etc., check box 2 and write in
the organ or tissue to be given. Then check either box 2(a) or 2(b) depending upon whether
the gift is for transplant or therapy only (a) or transplant, therapy,
research, or education (b).
If a gift is made only of the entire body
for research and education check box
3.
Complete box 4 if there are more specific
instructions regarding your anatomical gift.
While
this form allows for the making of a gift of the body for research or
education, it is often advisable that the person making the anatomical gift and
the intended donee have reached an agreement concerning this gift before the
gift is made. Typically, if a gift of the entire body is made without
specifically naming a donee, the donee will be that research or educational
organization selected by the organ procurement organization following your
death. With respect to your organs, tissue or eyes, the donee is the
appropriate procurement organization that deals with organ, eye or tissue
donation.
ANATOMICAL GIFT
STATE-ISSUED LICENSE OR CARD
______________________________________
Print or Type Name of Donor
1.
[ ] Any needed parts (organs, tissues, or eyes);
(a) [
] Transplant and therapy only
(b) [
] Transplant, therapy, research, or education
2.
[ ] Only the following parts (organs, tissues, or eyes):
________________________________;
(a) [ ] Transplant and therapy
only
(b) [ ] Transplant, therapy, research, or
education
3.
[ ] My body for research and education;
4 [ ] My body for the following purposes:
____________________________________
A
state might also provide for the making of an anatomical gift by a statement or
symbol on a license using a checkmark in a box labeled “organ donor.” In that
case, because the check marked statement reflects only a general intent to be
an “organ donor,” only the donor’s parts would be the subject of the anatomical
gift. See Section 13(d).
ANATOMICAL GIFT
OF PARTS-DONOR REGISTRY
Anatomical
Gifts
Please
select the items you wish to donate: (click an item name for more detailed information about that
item or items)
I offer the donation of the above checked
organs/tissue/eyes for the following purposes:
ANATOMICAL GIFT
OF BODY-DONOR REGISTRY
Anatomical
Gifts
Whole Body Donation
for Research and Education
Please
place a checkmark in the box below for whole body donation
|
|
Whole
Body Donation
|
|
I offer the donation of the above for the
following purposes:
SECTION 4 6. AMENDING OR REVOKING ANATOMICAL GIFT BEFORE
THE DECEDENT’S DEATH.
(a)
Subject to Section 6 8, a donor or other person authorized
to make an anatomical gift under Section 3 4 may amend or revoke
an anatomical gift, whether or not made by will, by:
(1)
a signed record signed by:
(A)
the donor;
(B)
another person
which made the anatomical gift on behalf of the donor; or
(C)
another individual acting at the direction of the donor or the other person;
or
(2)
a later-dated document of gift that amends or revokes or
amends a previous anatomical gift or a portion of a gift, either
expressly or by inconsistency.
(b) 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 of the document of
gift with the intent to revoke the gift.
(b)(c) A donor may also amend or revoke an
anatomical gift, that was not made by will, by any form of
communication during a terminal illness or injury addressed to at least two other individuals who are at least [18] years of age.
(c)(d) A
donor who makes an anatomical gift by will may also amend or revoke the
gift in the manner provided for amendment or revocation of wills or the manner
provided in subsection (a).
Comment
Section 6, relating to the amendment
and revocations of anatomical gifts, largely mirrors the provisions in the
prior acts. The section applies to the amendment or revocation of an anatomical
gift whether made by a donor or by another person on behalf of the individual
whose body or parts are the subject of the anatomical gift. Subsection (a)(2),
borrowing from statutes dealing with the revocation of wills, contemplates
revocations or amendments made either expressly or by inconsistency with the
later document of gift in time controlling. For example, suppose a donor
executes a will bequeathing her entire body to Medical School A for research
and education. Later, the donor signs a
document of gift donating a kidney for transplantation. Since the latter 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 (See Section 13) and the donor’s
remaining body would pass to Medical School A.
An anatomical gift can be revoked by
a record signed by the donor or the other person who made the gift on the
donor’s behalf pursuant to Section 4.
Additionally, it can be signed by another individual acting at the
direction of the donor or other person. For example, suppose a minor’s parent
signs a document of gift donating the minor’s organs. The donor may later revoke that gift by a
signed record. Under Section 6(a)(2), the donor may also amend or revoke the
gift by a later-dated document of gift that is inconsistent with the earlier
document of gift signed by the parent.
Suppose a donor signed a donor card
to donate a kidney and later advised her physician that she no longer wanted to
be a kidney donor. In this case, an entry in the patient’s medical records
would revoke the early gift because the medical record would be a record signed
by the physician at the donor’s direction. Because the medical record does not
purport to make an anatomical gift, it cannot be a document of gift.
In light of the broad definition of
a document of gift, use of any of the specific devises described in Section 5
to make a gift for the purpose of amending or revoking a gift would be
sufficient under this section. For example, suppose a donor advised his
physician that he wanted to be a kidney donor and later advised his physician
he wanted to be a heart donor and both of these decisions are recorded in the
donor’s medical records. The donor would be both a kidney and heart donor.
An anatomical gift made by a
document of gift can also be revoked by destruction if the destruction is done
with the intent to revoke the gift. As a practical matter revocation by
destruction will not be possible for gifts made on a donor registry. Donor
wishing to revoke gifts made on a registry should revise the registry. If an
anatomical gift was evidenced by a written document which was destroyed
inadvertently and cannot be found, there may be no effective Section 4
anatomical gift because no one may know of the gift. Inadvertent destruction of
donor cards are common. For example, 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 licenses, registries, or medical records, in
order to reduce the risk of inadvertent destruction.
The ability to make or revoke an
anatomical gift is subject to the limitations in Section 8 of this [act]. For
example, if a donor makes an anatomical gift of a kidney, all other persons are
precluded from making a later gift of that kidney or revoking that gift.
Therefore, the donor’s later-appointed guardian would not be empowered to amend
or revoke that gift.
An anatomical gift may also be
revoked or amended by a donor with a terminal illness or injury by any form of
communication that is addressed to at least
two individuals over the age of [18]. If the donor cannot communicate orally,
acceptable communication, in addition to a record, could include a movement of
the head or eye in response to specific questions.
SECTION 57. REFUSAL TO MAKE ANATOMICAL GIFT.
(a)
An individual may refuse to make an anatomical gift of the individual’s
body or any part by:
(1)
a signed record signed by the individual or by the
individual’s will whether or not the will is admitted to probate or invalidated
after the individual’s death; or
(2) a statement or symbol attached to or
imprinted on a license to operate a vehicle or an identification card issued by
a state or on a donor registry if the license or registry allows for the
making of a refusal;
(3) a statement or symbol entered into
the individual’s medical record by the individual’s health-care provider at the
individual’s direction; or
(4) During the individual’s terminal
illness or injury, the refusal may be by any form of communication made
during the individual’s terminal illness or injury.
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) or by making an anatomical gift pursuant to Section 5 that is
inconsistent with the previous refusal to make that gift.
Comment
Section
7, relating to refusals to make an anatomical gift, finds its antecedents in
prior law. This section, however, applies only to a refusal by an individual of
anatomical gifts of that individual’s body or of that individual’s parts. An
agent, parent, or guardian, cannot make a refusal binding upon any other
person. Section 7 honors the autonomy of the individual whose body or part
might otherwise be the subject of an anatomical gift to bar others from making
a gift on his or her behalf.
Refusals
typically are evidenced by a signed record. They can also be evidenced by a
symbol or statement on a license or card issued by the state or upon a donor
registry where there is an opportunity to do so or upon a medical record.
However, nothing in this [act] should be construed to require licenses,
identification cards, registries, or medical records to provide space for
refusals. Additionally, a refusal can be made by any form of communication by a
terminally ill or injured person in the same manner as amendments and
revocations. A refusal can only be amended or revoked by the individual making
the refusal. The consequence of a
refusal is set forth in Section 8.
Subsection
(b) provides for the revocation of a refusal. A refusal may be revoked by a
signed record. 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 kidney only.” Here there is a gift of the kidney and a refusal to be a
donor of any other part. This would preclude any person from revoking the gift
of the kidney or making a gift of any other part. Similarly, if the individual
had signed a refusal and then 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.
A simple form of refusal under this [act]
could provide:
Pursuant to the Anatomical Gift Act, I
hereby refuse to make any anatomical gift.
________________________ ________________________
Date of Birth Signature of
Declarant
SECTION 6 8. PRECLUSIVE EFFECT OF GIFT, AMENDMENT, REVOCATION,
OR REFUSAL.
(a)
A donor’s anatomical gift or amendment of an anatomical or an
individual’s refusal to make an anatomical gift of the individual’s body or a
part precludes any other person from making, amending, or revoking an
anatomical gift of the body or that part. In the absence of contrary
indications by the donor, no person, other than a donor, may make, amend, or
revoke an anatomical gift of the donor's body or part if the donor made an
anatomical gift or an amendment of an anatomical gift of the donor's body or
that part under Section 4 or Section 6.
(b)
A donor’s revocation of an anatomical gift of the donor’s body or any
part under Section 4 6 does not preclude any other person from
making an anatomical gift of the body or any part under Section 4 or Section
9 of this [act].
(c) If an individual refuses to make an
anatomical gift of the individual’s body or a part under Section 7, no other
person may make an anatomical gift of the body or that part in the absence of contrary
indications by that individual.
(c)(d) If a person other than the donor makes
Aan anatomical gift or an amendment or revocation of
an anatomical gift of all or any part of the donor’s body under Section 4 or
Section 6 by a person other than the donor precludes all other persons
from no other person may making, amending, or revoking make,
amend, or revoke the an anatomical gift of the body or that part at
a later time under Section 79.
(e) A revocation of an anatomical gift of
all or any part of the donor’s body under Section 6 by a person other than the
donor does not preclude
any other person from making an anatomical gift of the body or any part under
Section 4 or Section 8.
(d)(f) In the absence of contrary indications by the
donor or other person authorized to make an anatomical gift under Section 3:
4:
(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 of other parts under Section 7 9,
and
(2)
a revocation or amendment of an anatomical gift is not a refusal to make
an anatomical gift at a later time.
Comment
Section 2(h) of the ‘87 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 it was the
practice, albeit now changing, for procurement organizations to seek permission
from donor families to allow parts to be retrieved from decedents who were
donors. This practice, however, is inconsistent both with the ’87 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 harvesting of organs.
Section
8 is designed to bolster the rule that a donor’s autonomous decisions regarding
the making or refusing to make an anatomical gift are honored and not subject
to change by others. Section 8 continues the policy of making lifetime
donations irrevocable while also taking away from families the ability to
consent to, amend, or revoke donations made by donors during their lifetimes.
It also prevents families from making donations on behalf of decedents who,
while living, had signed a refusal to make an anatomical gift under Section 6
unless there is evidence that the individual signing the refusal did not intend
to have that refusal bind others after death.
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 an
appropriate document of gift. By virtue of Section 8(a), no other person,
whether purporting to act under Section 4 or Section 9, can alter or revoke
that gift. In fact, because they are by this [act] precluded from doing so,
they have no legal authority or right to alter or revoke the gift.
Section
8(b) provides that the donor’s revocation of an anatomical gift, as
distinguished from a refusal, precludes no one from making an anatomical gift
of the donor’s body or parts. The difference between the sections 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 a donor, who had donated
a kidney by a donor card, later destroys that card with the intent to revoke
the gift. This revocation will not prevent another acting under either Section
4 or 9 from making an anatomical gift. A donor who wishes both to revoke and
bind others must sign a refusal.
Section
8(c) provides that an individual’s refusal to make an anatomical gift of the
individual’s body or a part precludes all others from later making a gift of
the body or that part absent contrary indications by that individual. Thus, if
an individual signs a Section 7 refusal, no person following that individual’s
death has the power to make an anatomical gift for that individual. Of course,
such persons are precluded only if they know of the refusal. See Section 9(b).
This section also honors the autonomy of the individual to refuse to have his
body or parts the subject of an anatomical gift. While this [act], as well as
the prior acts, reflects the policy of encouraging anatomical gifts, it also is
important to respect the autonomous decisions of individuals not to be organ
donors.
An
individual might sign a Section 7 refusal that is not intended to affect the
ability of others to make an anatomical gift following the individual’s death.
If that intent is reflected in the refusal, or under Section 7(b) if the
refusal is later revoked, then other persons can make an anatomical gift under
Section 9. 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 or
guardian nor any person listed in Section 9 can make an anatomical gift of the
individual’s body or part. However, it
is possible that an individual might wish to bar the individual’s guardian from
making an anatomical gift under Section 4 but not the individual’s family from
making a gift under Section 9. If that intent is made clear
in the refusal, that intent will be honored.
A
revocation is not a refusal, however, Therefore a donor’s revocation of a
previously made anatomical gift of a part does not preclude an agent or
guardian acting under Section 4 or any person listed in Section 9 from making a
later gift of the donor’s body or part.
The only way a donor can bar another from making a gift is by the
execution of a Section 7 refusal. This policy is consistent with prior law.
Therefore, donors wishing to bar others from making an anatomical gift must
sign a refusal.
Sections
8(d) and (e) apply to gifts, amendments and revocations by persons other than a
donor under either Section 4 or 6 of this [act]. These persons cannot make a
Section 7 refusal. Generally, the rules here parallel the rules applicable to
donors in Section 8 (a) and (b). For example, suppose the guardian of an
individual makes a donation of that individual’s kidney by signing a document
of gift. Later the individual dies. The only individual who could revoke that
gift would be the person acting as the individual’s guardian at the
individual’s death since all of the other persons listed in Section 9 would be
precluded from revoking the gift. The guardian’s decision would not affect the
ability of the donor, the donor’s agent, or the donor’s guardian from later
making, amending, or revoking a gift or the individual whose body or part was
donated from later signing a Section 6 refusal. However, the revocation of an
anatomical gift by a agent, parent or guardian would not prevent the making of
an anatomical gift under Section 9. For example, suppose a minor makes an
anatomical gift by a notation on a driver’s license which the parent revokes
prior to the minor attaining age 18. The minor takes no further action to
effectuate the gift and dies at age 19 survived by a spouse. The spouse could
make an anatomical gift because the parent’s revocation of the minor’s
anatomical gift does not prevent the spouse from making the gift.
Section
8(f) consistent with prior law provides that absent 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,
donor makes a gift of the donor’s kidney. This gift is not construed as a refusal
to the donor’s family later making a gift of the donor’s heart.
SECTION 7 9. MAKING, REVOKING, AND
OBJECTING TO ANATOMICAL GIFTS BY OTHERS WHO MAY MAKE AN ANATOMICAL GIFT AFTER THE DECEDENT’S DEATH.
(a)
Subject to subsection (c) (b) and Section 10(b), an anatomical
gift of all or any part of a decedent’s body for purposes of transplantation,
therapy, research, or education may be made and except as otherwise provided in Section 6,
in the order of priority listed, by 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 paragraphs (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 the individual who was acting as the agent of the
decedent at the time of death and who could have made an anatomical gift
under section 4(b) of this [act] 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)
a the persons
who were acting as the [guardian] of the person of the decedent at the time of
death;
(9)
an adult who exhibited special care and concern for the decedent and
was familiar with the decedent’s personal values, and who is reasonably
available to make an anatomical gift on behalf of the decedent; 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 paragraphs (1), (3), (4), (5), (6), (7), (8), or (10), an anatomical
gift may be made by a majority of the members of the class who are reasonably
available.
Comment
Section
9 allows for the making of anatomical gifts following an individual’s death by
the persons listed in Section 9 who are not otherwise precluded from doing so
under either Section 8 or Section 10. 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 health-care power or any power terminates
when the principal dies. This [act], however, gives the person who had been
acting as an agent at the time of the principal’s death (even though death
terminated the agency relationship) a personal right to have the first priority
to make an anatomical gift on behalf of the decedent so long as that person was
empowered immediately before the decedent’s death to have made an anatomical
gift under Section 4. Thus, if the agent
acting under a health care power did not have the authority to make an
anatomical gift by express language in the health care power of attorney, that
individual would not have a priority to do so under Section 9.
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; and the person who was acting as guardian of the
decedent at the time of the decedent’s death. In the absence of those person a
decision can be made by any other adult exhibiting “special care and concern
for the decedent who was familiar with the decedent’s personal values.” This
concept parallels language in Section 5(c) of the Uniform Health-Care Decisions
Act. 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.
This
[act], in common with the prior acts, does not require, except in the case of a
“close friend,” that the person making the anatomical gift be familiar with the
decedent’s personal values. The difference assumes that the other persons
empowered to make an anatomical gift would, by virtue or their relationship to
the decedent, be aware of decedent’s values and to expressly require it might
result in unnecessary disputes. To the extent that an individual is concerned
that the persons named in Section 9 may not take adequate account of their
personal preferences regarding anatomical gifts, the onus is on them to either
make or preclude the making of an anatomical gift.
A
commonly raised concerned regarding whether an anatomical gift might be
inconsistent with a decedent’s personal beliefs centers around religion.
In Organ and Tissue Donation: A Reference Guide for Clergy, 4th ed., 2000.
Cooper ML, Taylor GJ, eds and reprinted at http://www.organtransplants.org/understanding/religion an analysis was done of
the positions and statements of various religions regarding organ donation.
While not exhaustive of all religious traditions (it included only the
following: African Methodist Episcopal, Amish, Assembly of God, Baptist,
Bretheren, Buddhism, Catholicism, Disciples of Christ, Christian Science,
Episcopal, Greek Orthodox, Hinduism, Independent Conservative Evangelical,
Islam, Jehovah’s Witnesses, Judaism, Lutheran, Mennonite, Moravian, Church of
Jesus Christ of Latter-Day Saints, Pentecostal, Presbyterian, Seventh-Day
Adventists, and Shinto, Society of Friends, Unitarian Universalist, United
Church of Christ and United Methodist), the authors found no religious
objection to organ donation. It did find in many traditions enthusiastic
support; in many others the view that the decision is solely for the individual
or family. Notably, Pope John Paul II has stated: “The Catholic Church would
promote the fact that there is a need for organ donors and that Christians
should accept this as a ‘challenge to their generosity and fraternal love’ so
long as ethical principles are followed.” Id. For individuals with a religious objection to
donation, the opportunity to refuse a donation and preclude any other person
from donating their organs is an important safeguard in this [act].
Because of subsection (b) and unlike the
’87 act, if a class empowered to make a gift has multiple members and a
majority of the members of the class who are reasonably available make the
gift, the gift is valid notwithstanding the objection of one or more members of
the class. This rule, however, is inapplicable to the “close friend” category.
While the decedent may have had more than one “close friend” under this [act]
any of them is empowered to make an anatomical gift.
The concept and definition of “reasonably
available” is new in this [act]. It 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. In practice, where an anatomical gift of a decedent’s
organs was not made prior to death, conversations with family members to
consider donation often occur before death but that is not always possible. In
accident cases, for example, it can take time to locate all family members.
Where a decision to donate on behalf of a dying person can be made in advance,
the procurement organizations generally will have no difficulty in contacting
persons with the priority to make an anatomical gift. However, in other cases
locating persons with a higher priority may not be as easy or even possible
(although this should be less so in this highly electronic age). For example, a
person may be dying as the result of an automobile accident. The procurement
organization may have easily contacted the dying person’s adult siblings but
their parents are on a cruise. This [act] would allow the siblings to act
assuming the parents could not be contacted to consider whether to make or
refuse to make a donation.
SECTION
10. MANNER OF MAKING OR REVOKING ANATOMICAL GIFT
AFTER DECEDENT’S DEATH .
(b)(a) An anatomical gift under subsection (a) Section 9 may only be made only
by a document of gift signed by the person making the gift or that person’s telegraphic,
recorded telephonic, or other recorded message or by another form of
oral communication that is contemporaneously reduced to a
record and signed by the donee.
(c)(b) A person or class of persons listed in subsection
(a) of Section 9 may not make an anatomical gift if:
(1)
the person or class of persons knows that the right to make an anatomical gift
was precluded
by Section 8;
(2)
the person or class of persons knows of any objection to the making of an
anatomical gift by any member of a prior class who is not reasonably available,
or, if there is more than one member of the prior class who is not
reasonably available, the person knows
of an objection by a majority of them or knows that they are equally divided
whether to make an anatomical gift; or,
(3)
a person in a prior class is
reasonably available at the time of the decedent's death to make an anatomical
gift but has not been given a reasonable opportunity to make or refuse to
object to the making of to make an anatomical gift.
(d)(c) Subject to subsection (e d), an anatomical gift by a person
authorized under subsection (a) Section
9 of this [act] may be revoked orally or in a record by any member
of 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 only
if a majority of them members of the class object to the making
of the anatomical gift or they members are equally divided
whether to make an anatomical gift.
(e)(d) A revocation under subsection (d c)
is effective only if, before procedures have begun to remove a part from the
decedent’s body or surgically prepare the recipient, the donee or the
physician, technician, or enucleator
removing the part or preparing the recipient actually knows of the revocation before procedures have begun to remove
a part from the decedent's body or to surgically prepare the recipient.
(f)(e) For purposes of this section, if a person
having priority to make, to object to the making of, or to revoke 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.
Comment
Section
10(a) provides that an anatomical gift under Section 9 must be must be made by
a document of gift that is signed by the person making the gift. The person may
also make the gift orally but evidence of that oral gift must be reduced to a
record signed by the donee determined under Section 13. For example, the
decedent’s spouse might consent to a gift over the telephone. The organ
procurement organization, as donee, would then note that consent in a record
and sign that record.
No
person may make an anatomical gift if the person knows that the right to make
an anatomical gift was precluded under Section 8. For purposes of this [act]
“knows” is defined to mean actual knowledge. See Section 2(paragraph 12). This places an onus on individuals wishing to
preclude an anatomical gift of their parts following their deaths to do so by a
record that is easily discoverable or to communicate to their loved ones their
wishes. These individuals, for example, might want to have their refusal (or
their donations) included in their medical records.
No
person may make an anatomical gift if the person knows of any objection to the
making of an anatomical gift by any member of a prior class who is not
reasonably available. See Section 10(b)(2). For example, if the decedent’s
spouse is not reasonably available, a child of the decedent cannot make an
anatomical gift if the child knows that the decedent’s spouse objects to the
making of an anatomical gift. But, if
there are multiple members of a class who are not reasonably available, a
person in a more remote class can make an anatomical gift unless the person
knows either that a majority of the prior class object to the making of the gift
or that the unavailable members of the group are equally divided. This
majority/equally divided rule means that a known objection by only one member
of a class of more than two persons does not bar a person in a more remote
class from making an anatomical gift. For example, suppose decedent’s relatives
include six adult siblings who are not reasonably available and an adult
grandchild. The grandchild, although in a more remote class, can make the
anatomical gift so long as the grandchild has no knowledge that four adult
siblings object or that the siblings are equally divided. (Under prior law a person was barred from
making an anatomical gift if the person knew of an objection by any member of
the person’s class or prior class. Section 3(b)(3)). Suppose it turns out that
one of the siblings becomes reasonably available before procedures had begun to
either remove the part from the donor or to surgically prepare the recipient.
See subsection (d). That sibling could revoke the grandchild’s gift under subsection
(c).
Of
course, if the siblings, or any one of them, were reasonably available to make
a decision initially but had not been given the opportunity to do so, then the
grandchild would not be empowered to make the gift under Section 9. See Section
10(b)(3). On the other hand, if the siblings were reasonably available but
unwilling to make a decision in a reasonably timely manner, Section 10(e)
treats them as unavailable.
In
common with the prior law, if a member of a class, or the majority of the
members of a class, make an anatomical gift but there is a member of a prior
class who is reasonably available, that member may revoke the gift. Section
10(c). However, unlike prior law, subsection (c) provides that if the prior
class has more than one member who is reasonably available, then the gift can
be revoked only if the majority of the members of the prior class revoke the
gift or they are equally divided. For example, suppose an anatomical gift of a
kidney is made by a parent of the decedent. Prior to either the removal of the
kidney from the decedent or the surgical preparation of the recipient, a child
of the decedent who was not initially present to make or refuse to make a gift
purports to revoke the gift. If this child is decedent’s only reasonably
available child, the gift is revoked. But, if there are three children who are
reasonably available, the gift is not revoked unless two of them agree to
revoke the gift.
This
act, unlike prior law, defines “reasonably available.” (Section 2 (paragraph 18)).
Section 10(e) also provides that, if a person with a priority to make, to
object to the making of, or to revoke a gift, is “unwilling” to make a
decision, that person is deemed not
to be reasonably available. For example, an individual with a higher priority
(spouse) may be unwilling to make a decision preferring it be made by others
(children). In this case the spouse, being unwilling to make a decision, is not
reasonably available. There is some concern that an unwillingness to make a
decision is the equivalent of an objection, or that in treating it as an
objection, there is the potential for inappropriate pressure being placed on a
grieving relative to make a decision. This concern relates to a potential
tension between the goal of anatomical acts to increase the supply of
transplantable organs and the general societal goal of respecting individual
autonomy. This [act] reflects a judgment that in the context of organ donation,
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 8 11. 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 anatomical
gifts for the purposes of transplantation, therapy, research, and
education.
(b)
Upon request of a procurement organization, a [coroner] [medical
examiner] shall release
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].
(b)(c) If a [coroner] [medical examiner] receives
notice from a procurement organization that an anatomical gift might be
available with respect to a deceased individual whose body is in the
jurisdiction of the [coroner][medical examiner] or receives notice from a donee
of an anatomical gift of any part from a decedent in the jurisdiction of the
[coroner][medical examiner], the [coroner][medical examiner] shall conduct an
examination, autopsy, or analysis of those parts in a manner and within a time
period compatible with their preservation for the purposes of the anatomical
gift.
(c)(d) If the body of a deceased individual is in
the jurisdiction of the
[coroner][medical examiner], the [coroner][medical examiner] may review all
necessary information, including medical records, laboratory test
results, x-rays, and other diagnostic results, and other information
in the possession of any person about the deceased individual which
are in the
possession of any person
which the [coroner] [medical examiner] determines may be relevant to an
examination, autopsy, or analysis of the body and parts of a body within the
jurisdiction of the [coroner] [medical examiner] .
(d)(e) A person that has any information Any
information requested by a [coroner] [medical examiner] pursuant to
subsection (d) shall provide must be provided by the person having
that information as expeditiously as possible to allow the [coroner] [medical
examiner] to conduct the investigation into the cause of death and to complete
the examination, autopsy, or analysis of the body and parts within a time
period compatible with the preservation of parts for purposes of transplantation,
therapy, research, or education.
(e)(f) 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 an autopsy is not 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.
(f)(g) If an anatomical gift of an organ from a
deceased individual whose body is within the
jurisdiction of a [coroner] [medical examiner] has been or might be made but the [coroner]
[medical examiner] initially believes
that the recovery of the organ by the organ procurement organization could
interfere with the investigation into that individual’s cause of death, then
the [coroner] [medical examiner] or its
designee shall attend the removal procedure for that organ before making a
final determination not to allow the organ procurement organization to recover
the organ for transplantation, therapy, research, or education. At the removal
procedure, the [coroner] [medical examiner]
may allow recovery by the organ procurement organization to proceed,
request a biopsy, or deny recovery by the organ procurement organization if, in
the judgment of the [coroner] [medical examiner] , the organ may be involved in
determining the individual’s cause of death. The [coroner] [medical examiner] shall
explain in a record the reasons for not allowing the organ procurement
organization to recover the organ and shall include those reasons in the
records of the [coroner] [medical examiner] and provide a copy of the reasons
to the organ procurement agency organization.
(g)(h) If, pursuant to subsection (fg),
a [coroner] [medical examiner] is
required to be present at an autopsy under subsection (g), the organ
procurement organization requesting the recovery of the organ shall reimburse
the [coroner] [medical examiner] , upon request, for the actual direct
costs incurred in performing the duty specified in complying with
subdivision (fg).
(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].
(i)
If an anatomical gift of eyes or tissue has been made, a [coroner]
[medical examiner] shall permit the timely removal of eyes and tissue from a
decedent for purposes of transplantation or therapy by a procurement organization.
(j)
This section does not authorize the making of any person to
make an anatomical gift by any person. No parts may be removed from
the body of a deceased individual in the jurisdiction of a [coroner] [medical
examiner] for transplantation, therapy, research, or education unless that part
or body is the subject of an anatomical gift.
The body of a deceased individual within the jurisdiction of the
[coroner] [medical examiner] may not be delivered to a donee of the body for
research or education unless the body is the subject of an anatomical
gift.
Comment
Under subsection (a) collaboration
should include the development and implementation of a death notification
protocol to procurement organizations.
SECTION 9 12. SEARCH AND
NOTIFICATION.
(a)
The following persons shall make a reasonable search of an
individual’s personal effects available on or near the individual
for a document of gift or other information identifying an that
individual as an individual who has made or refused to make an anatomical gift
or on whose behalf an anatomical gift has been made:
(1)
a law enforcement officer, fireman firefighter, paramedic,
or other emergency rescuer finding an individual who the searcher reasonably
believes is dead or near death; and
(2)
a hospital, upon the admission of the that individual at
or near the time of death, if no other source of the information there
is not immediately available any other source of that information.
(b) If a law enforcement officer or any
other person with access to motor vehicle records finds an individual who the
law enforcement officer or other person reasonably believes is dead or near
death, the law enforcement officer or other person shall make a reasonable search
of the motor vehicle records to ascertain whether the individual has made or
refused to make an anatomical gift.
(c) A organ procurement organization,
upon admission of an individual at or near the time of death, shall make a
reasonable search of any donor registry serving the geographical
area
in which the hospital is located to ascertain whether the individual has made
or refused to make an anatomical gift.
(b)(d) If a document of gift or a record
evidencing a evidence of refusal to make an anatomical gift is
located by the search required by subsection (a) or (b), and the
individual or deceased individual to whom it is related is taken to a hospital,
the document of gift or record other evidence must be sent
to the hospital by the person who located the document of gift or record
evidence.
(c)(e) A person who that fails to
discharge the duties imposed by this section is not subject to criminal or
civil liability but is [may be] subject to administrative sanctions as
otherwise provided by law.
Comment
The ’87 Act did not limit a
reasonable search to the individual’s personal effects. Rather it appeared to
authorize broader searches to discover a document of gift. While there are no
known cases suggesting an overzealousness of searches under the authority of
the prior law, the language was deemed possibly too intrusive and susceptible
to an interpretation allowing for broader searches than was intended. The
intent here is to limit reasonable searches to personal effects. This
limitation recognizes that the prototypical evidence of a donation by a donor
during life is the donor’s driver’s license. Admittedly, emergency rescuers may
also find dying or deceased individuals in their homes where they are unlikely
to have a driver’s license on their persons. While subsection (a) does not
authorize a reasonable search of their homes, subsection (b) requires any
responder with access to the motor vehicle records to search those records for
evidence of an anatomical gift.
SECTION 10 13. PERSONS WHO MAY
BECOME DONEES.
(a)
For purposes of In this section, “appropriate procurement
organization” means a procurement organization for the part to be used for
transplantation or therapy which serves the geographical area in which the
decedent died.:
(1)
in the case of a donation of an organ, the organ procurement
organization for the service area in which the decedent died;
and
(2) in the case of a donation of eye or
tissue, a procurement
organization for the part to be used for transplantation or therapy. which
serves the geographical area in which the decedent died.
(b)
The following persons may be designated as donees of anatomical
gifts:
(1)
an appropriate procurement organization; 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)(2) a 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; and or
(3) an named individual designated
by the person making the anatomical gift if the anatomical gift is of a part
for transplantation or therapy needed by the named individual;
(c)
If an anatomical gift is made under Section 3 4 of one or
more parts in a document of gift that does not designate a donee, the donee is
the appropriate procurement organization for each part.
(d)
If a document of gift made pursuant to Section 3 4
specifies only a general intent to make an anatomical gift by such
phrases such as “organ donor” or “body donor,” the decedent’s
parts may only be used only for transplantation or therapy. For this
purpose the donee is the appropriate procurement organization for each part.
(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 is 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.
(f)(e) Custody of a decedent’s body if
If there is no donee or of decedent’s parts not used by the donee for
transplantation, therapy, research, or education custody of the decedent’s
body vests in the person under obligation to dispose of the body.
(g)(f) If the a donee actually
knows that there was a of the refusal to make an anatomical gift
under Section 5 7 or that there was a revocation of
an anatomical gift or that an anatomical gift was not effectively made under
Section 7 9, the donee may not accept the anatomical gift. For
purposes of this subsection, if the donee knows that:
(1)
a document of gift is on a particular
donor registry, the donee is deemed to have actual acknowledge know
of any amendment or revocation of that document of gift or any refusal to make
an anatomical gift that is on the same donor registry; or,
(2)
a decision to make a anatomical gift was evidenced by the donor’s medical
records maintained by a particular health-care provider, the donee is deemed to
know of any amendment or revocation of that gift or any refusal to make an
anatomical gift that is on the donor’s medical records of that particular
health care provider.
(h)(g) This [act] does not affect the allocation of
parts by any person acting under the authority of federal law relating to the
allocation of parts for transplantation.
Comment
Who may be a donee of organs, eyes,
and tissue, differs under this [act] because of differing federal policies and
regulations. For eyes and tissue, the appropriate procurement organization is a
procurement organization for the eye or tissue. Eye and tissue banks do not
have a defined service area. Furthermore, eyes and tissue need not be
transplanted in a short period of time following their retrieval from a donor.
They can be stored for future use.
On the other hand, organs, once
retrieved from a donor, generally must be used within a relatively short period
of time. Furthermore, there is a level of medical suitability between a donor
and a recipient regarding a transplantable organ that does not exist for eyes
and tissue. Since the promulgation of the prior anatomical gift acts there have
been significant changes in the how organs, in particular, are procured and
allocated for purposes of transplantation. The changes in this [act] take into
account the differences between organs, eyes, and tissue.
By Section 274 of the National Organ
Transplant Act in 1984, Congress created the Organ Procurement and Transplant
Network. See also, 42 CFR §§ 121 et. seq. That Network, in turn, contracts with United
Network Organ Sharing (“UNOS), a non-profit corporation, to administer the
nation-wide allocation of organs for transplantation. UNOS, in turn, has
agreements with numerous organ procurement organizations with specified service
areas. The OPOs have primary responsibility to evaluate the medical suitability
of organs for transplantation, secure gifts under Section 9 where the decedent
was not a donor at the time of death, arrange for the procurement of organs
from donors, and cause organs to be allocated and transferred to recipients in
accordance federal regulations and policies adopted by UNOS pursuant to federal
regulation. Generally, the OPO which oversees the procurement and transfer of
organs is the organ procurement organization for the service area in which the
donor dies.
To assist in the evaluation of
potential donors Federal law also requires hospitals receiving Medicare funding
to refer all deaths or near deaths to organ procurement organizations for the
evaluation of the decedents as possible organ donors. See 42 CFR § 482.45
(Conditions of Participation: Organ, tissue, and eye procurement). These referral
requirements have made the provisions of Section 5 of the 1987Anatomical Gift
Act obsolete and, accordingly, those provisions have been deleted from this
[act].
While
this [act] permits donations to a named individual, such donations are
exceedingly rare for at least two
reasons. First, only in rare circumstances would a donor, during the donor’s
life, know of an individual who would need an organ that would be the subject
of an anatomical gift and similarly decedent’s families are generally not
likely to know of the identity of such individuals. Secondly, as a result of the national allocation policies, anatomical
gifts to named individuals are very rare because the donee, in such case, may
not have a priority to the organ on the national list. If the donee lacks a
priority, no hospital receiving Medicare funding (about __% of all hospitals in
the United States) would be permitted to allow its
facilities to be used for the transplant procedure.
An
anatomical gift of a body for research or education can be made to a designated
organization. These typically occur as the result of a 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. In the case of a
Section 9 anatomical gift of the entire body, or the portion of the body made
after a gift of organs, tissue, and eye, the donee may either be selected by
the individual making the gift or by the procurement organization.
It
is common practice, particularly with respect to gifts evidenced by a statement
or symbol on the driver’s license of the donor, for the donor to indicate
nothing more than a general intent to be an organ donor. For example, the
driver’s license of a donor may have an X in a box labeled “organ donor.” Prior
law did not specific who would be the donee of the organs in such cases.
Section 13(d) of this [act] expressly provides that if a document of gift
specifies only a general intent to be an organ or body donor, such as would
incur in the prior example, (1) only the donor’s parts (organs, eyes and
tissue) are the subject of the gift and (2) the donee is the appropriate
procurement organization for that part. Individuals wishing to donate their
entire body for research or education, therefore, would have to do more than
merely making a donation on a driver’s license evidenced by nothing more than a
general intent to be an “organ donor.” See Comments to Section 5 relating to
model donor cards and licenses. On the other hand, and contrary to the existing
laws of some states, a statement on a driver’s license that the licensee is an
“organ donor” is an anatomical gift and not merely evidence of intention to
want to be a donor and as such organs can be procured without the need of a
Section 9 gift. Likewise, as an anatomical gift, under Section 8 surviving
family members would be precluded from revoking the gift.
Section
13(f) provides that custody of the parts of the decedent not used for
transplantation, therapy, research or education or the decedent’s body if there
is no donee vests in the person having the obligation to dispose of the
decedent’s body. That person is typically determined by other law or pursuant
to agreement between the donor or person making the Section 9 gift and the
donee.
Under
the common law, a gift is effectuated by intent, delivery, and acceptance. (But
see Section 14(a) regarding delivery). In common with general principles of
gift law, an express acceptance of an anatomical gift is not required. However,
Section 13(g) provides certain bars on the acceptance of an anatomical gift by
a donee that would trump the “acceptance presumption.” A donee may not accept
an anatomical gift if the donee knows of a Section 7 refusal. A donee may not
accept an anatomical gift if the donee knows that a gift once made had been
revoked or that a gift under Section 9 was not properly made. For example,
suppose the intended donee of a gift from children knows that the decedent’s
spouse is available and willing to make or refuse to make a gift. The donee may
not accept the purported gift from the children. The knowledge requirement is
subject to an imputed knowledge exception in the last sentence of Section 13(g).
If the donee has knowledge of an anatomical gift made on a particular donor
registry, the donee is deemed to have knowledge of any revocation of that gift
or later refusal to make a gift on the same donor registry as well. The obvious
intent here is to preclude donees from searching a particular registry to find
a gift without searching the same registry to see if the gift has been revoked
or precluded. Again, nothing in this [act] requires a registry to have a
refusal section
As
noted above, federal laws and policies control the allocation of organs among
needy recipients. These laws preempt contrary state laws. Thus, it is
appropriate that Section 13(h) provides that nothing in the [act] shall be
construed to affect the allocation of organs for transplantation.
SECTION 11 14. DELIVERY OF DOCUMENT OF GIFT.
(a)
Delivery The validity of an anatomical gift does not require
delivery of a document of gift during the 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)
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] or is a
potential donee under Section 13 to examine or copy the document of gift or
refusal.
Comment
Section 14(a) rejects the common-law
principle that a gift requires delivery to be effective. Most anatomical gifts
are made without any communication between the person making the gift and the
ultimate donee and, for obvious reasons. First, the donee is likely unknown.
Second, unlike other gifts, anatomical gifts are completely revocable. However,
a document of gift or a copy can be delivered to the donee and donors may do so
in hopes of expediting the retrieval procedures at their deaths.
This
[act] does not affirmatively require any person in possession of a document of
gift or a record evidencing a refusal to make an anatomical gift to come
forward at a decedent’s death with that information. That requirement would be onerous. On the
other hand, a document of gift or a refusal to make an anatomical gift may be
in the possession of someone other than the donor, particularly when made by
means other than a driver’s license or in a medical record. Persons in
possession of a document of gift or a record evidencing a refusal to make an
anatomical gift shall allow persons who can make or object to the making of an
anatomical gift to review and copy such records. They shall also allow potential
Section 13 donees to examine and copy such documents. Under Section 5, a
document of gift includes a notation in the donor’s medical records. Release of that information does not violate HIPPA.
See Comments to Section 15.
SECTION 12 15. RIGHTS AND
DUTIES OF PROCUREMENT ORGANIZATIONS AND
DONEES.
(a)
A procurement organization may conduct any reasonable examination
necessary to assure ensure 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.
(b)
The donee of an anatomical gift may conduct any reasonable
examination necessary to assure ensure the medical or other
suitability of the body or part for its intended purposes at any time after the
decedent’s death.
(c)
An examination under subsection (a) or (b) may 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 11, rights of a donee of an
anatomical gift are superior to rights of others. A donee may accept or reject
an anatomical gift in whole or in part. If a donee rejects a part for purposes
of transplantation or therapy, the part may be used for research or education
if expressly permitted by the terms of the document of 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, the donee, upon the death of the decedent and before embalming, shall
cause the part to be removed without unnecessary mutilation.
(e) 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.
(f)
If there has been an anatomical gift, a technician may remove any
donated parts the technician is qualified and trained to remove
and an enucleator may remove any
donated eyes or parts of eyes from the decedent.
Comment
Under Section 14(a) procurement
organizations may conduct a reasonable examination to determine the medical suitability
of a part that is the subject of a prospective anatomical gift. This provision will work in tandem with
federal routine request policies under which hospitals refer prospective donors
to an organ procurement organization to determine medical suitability. If there
is a known donee, that donee also is authorized to make a reasonable
examination to determine the medical or other suitability of the body or the
part for its intended purposes. (Section 14(b)). The permitted examination includes an examination
of all medical records of the donor or the prospective donor. This section 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.”
SECTION 13 16. COORDINATION OF PROCUREMENT AND USE. Each hospital in
this state, after consultation with other hospitals and procurement
organizations, shall establish agreements or affiliations for coordination of
procurement and use of human bodies and parts.
Comment
42
CFR § 482.45 sets forth criteria requiring hospitals and organ procurement
organizations to have cooperative agreements to permit organ procurement
organizations to determine the medical suitability of organs for transplant.
Furthermore in the absence of alternative arrangements by a hospital, the organ
procurement organizations have responsibility to determine the medical
suitability of tissues and eyes. 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 eyes and tissue and (2) ensure, working with organ
procurement organizations, that families of potential donors are informed of
the option of donations of eyes, tissue, and organs.
SECTION 14 17. SALE
OR PURCHASE OF PARTS PROHIBITED.
(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,.
(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 subsection (a) 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.
Comment
This section, prohibiting the sale
or purchase of organs intended to be removed from a decedent after death,
applies only to anatomical gifts. The National Organ Transplant Act, 42 U.S.C. § 274(e) contains a broader prohibition
on sales applying to both anatomical gifts intended to result in the removal of
an organ from a donor during the donor’s life and following the donor’s death.
The committee was urged to delete
this section in the event that the federal prohibition was later repealed or
modified as some organizations, such as the AMA, have urged. The argument is
that if this section remains in the [act] but federal law is repealed, sales
could not occur in states enacting this section. The committee’s view was the
policy against ___________________________________________________
SECTION 1518. NONLIABILITY.
(a)
Subject to subsection (c), a person who acts in accordance with this
[act] 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 the act in a civil action or criminal proceeding or
subject to discipline for unprofessional conduct.
(b)
Neither the person making an anatomical gift nor the decedent’s estate
is liable for any injury or damage that may result from the making or the use
of an anatomical gift.
(c)
Subsection (a) does not apply to a donee to which a document of gift has
been delivered if the donee has actual knowledge knows that the
anatomical gift has been revoked or amended or that a refusal to make an
anatomical gift was made pursuant to Section 5 7 and the donee’s
actions are inconsistent with the revocation, amendment, or refusal. For this
purpose, if the donee actually knows that a document of gift is on a
particular donor registry, the donee is deemed to have actual
acknowledge know of any amendment or revocation of that document of
gift or any refusal to make an anatomical gift that is on the same donor
registry.
SECTION 16 19. CHOICE OF LAW AS TO EXECUTION OF DOCUMENT
OF GIFT .
(a)
A document of gift is valid if executed in accordance with:
(1)
this [act]
(2)
the laws of the place where it was executed; or
(3)
the laws of the place that 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)
A person may assume that a document of gift is valid unless that person has
actual knowledge knows that it was not validly executed or was
revoked.
Comment
Section 19 is new to the anatomical
gift act. It is designed to accomplish two things. First, it assures that a
document of gift valid either in the place where executed, the place where the
person making the gift was domiciled, had a residence or was a national would
be valid in the state adopting this section. This section tracts like
provisions for will, such as Section 2-506 of the Uniform Probate Code.
More
importantly, Section 19(b) 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 6 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 17 19.
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 20. 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 21. ELECTRONIC RECORDS AND
SIGNATURES 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 20 22. REPEALS. The following acts
and parts of acts are repealed:
(1)
(2)
(3)
[SECTION
23 SEVERABILITY. If any provision of this [act] or its
application to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this [act] which can be given
effect without the invalid provision or application, and to this end the
provisions of this [act] are severable.]
SECTION 21 24. EFFECTIVE DATE. This [act] takes
effect ____________.
(a)
Prohibition
It shall be unlawful for any person to knowingly acquire,
receive, or otherwise transfer any human organ for valuable consideration for
use in human transplantation if the transfer affects interstate commerce.
(b) Penalties
Any person who violates
subsection (a) of this section shall be fined not more than $50,000 or
imprisoned not more than five years, or both.
(c) Definitions
For purposes of subsection (a) of this section:
(1) The term "human
organ" means the human (including fetal) kidney, liver, heart, lung,
pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and
any other human organ (or any subpart thereof, including that derived from a
fetus) specified by the Secretary of Health and Human Services by regulation.
(2) The term "valuable
consideration" does not include the reasonable payments associated with
the removal, transportation, implantation, processing, preservation, quality
control, and storage of a human organ or the expenses of travel, housing, and
lost wages incurred by the donor of a human organ in connection with the donation
of the organ.