Date:
To: Uaga drafting committee and observers
From: sheldon f. kurtz, national conference reporter
RE: For Committee consideration
1. Background:
One of the innovations of
this act is the creation of default rules to guide the interpretation of
documents of gift (such as drivers’ licenses) that state nothing more than an
intent to be an “organ donor” or “donor.” Early on the Committee made the
policy choice that an expression of a general intent would only result in a
gift of parts, not the whole body. The idea was that donors who expressed a
general intent would likely want their parts used for transplantation or
therapy only, not their whole body used for research or education.
In April, we also approved a
nuance to the general intent rule providing that if there was only a general
intent to be a “organ donor,” parts could be used for transplantation,
therapy, research, or education with priority given to the first two. Thus, if
a part could not be used for transplantation or therapy, it would be used for
research or education. That works well when the determination is made that a
part cannot be used for transplantation or therapy after the part is removed
from the body, as it would be pointless to return it.
However, in some cases a
decision is made that a donor’s parts cannot be used for transplantation or
therapy before the parts are recovered from the body. In this case, the
[act] as drafted would say that the part must be used for research and
education. Now, since we have been told that the entire body is nothing but the
sum of organs, eyes, and tissue, the possible effect of a judgment that all
parts cannot be used for transplantation and therapy prior to their recovery is
that all parts (i.e., the entire body) can be used for research or education.
Thus, it is possible that the statute as written does what we did not want it
to do, that is, to allow a general statement of donative intent to result in
the use of the whole body for research or education when none of its parts can
be used for transplantation and therapy.
Another way of thinking
about this issue is to ask the question: Should parts be used for research and
education absent an express consent by a donor? This issue, by the way, should
not arise when a gift is made under Section 9 by surviving family members
because the procurement organizations can always make clear what the purpose of
the gift is and obtain the necessary consents when dealing with families. The
ability to do that does not exist when donors have made gifts before death.
I believe that Committee
must discuss this issue and hear as much as possible from our observers at the
Saturday morning meeting in Hilton Head. I have offered to the observers what I
think is a viable fix (see 2 below).
Here is how the changes
would work. Under revised section 11 when there is no named person to receive a
gift under subsection (a), there are three distinct classes of donors. Under
11(b) are donors who have specified parts and purposes; under 11(c) are donors
who have specified parts but no purpose; and under 11(d) are donors who have
not specified parts or purposes. (No provision is made for donors who specified
purposes but not parts).
Section
11(b) provides that if both parts and purposes are specified, the parts go to
the appropriate procurement organization but, it includes the priority rule
contained in section 11(d) of the annual meeting draft, so that, if all four
purposes (transplantation, therapy, research, and education) are specified,
transplantation and therapy have the priority.
Under both 11(c) and 11(d)
if no purposes are specified, the gift can only be used for
transplantation or therapy. However, if
the document of gift specifies less than all four purposes or, as a result of
the application of subsections (c) and (d), the gift is limited to
transplantation and therapy only, then the appropriate procurement organization
could seek the consent of the family member under Section 9 to expand the
purpose of the gift. The family member would not be barred under Section 8
because the bar provision in Section 8(a) is made subject to the provisions of
both subsection (g) and (h). For
example, suppose a donor’s driver’s license states only that the donor is an
“organ donor.” Under section 11(c), the donor’s parts can only be used for
transplantation or therapy. If, however, a procurement organization wanted to
use the parts for research or education, family members would not be barred by
Section 8 from consenting to the use of the parts for either of these purposes.
2. Possible revisions to
sections 4, 8, and 11
SECTION
4. WHO MAY MAKE ANATOMICAL GIFT BEFORE
DONOR’S DEATH. Subject to Section 8,
an anatomical gift of a donor’s body or part may be made during the life of the
donor for the purpose of transplantation, therapy, research, or
education in the manner provided in Section 5 by:
(1) the donor, if the donor
is at least [18] years of age or is under [18] years of age and is:
(A) an emancipated minor; or
(B) authorized under state
law to apply for a driver’s license because the donor is at least [insert the
youngest age at which, without regard to other factors, an individual may apply
for any type of driver’s license or permit] years of age;
(2) an agent of the donor,
unless the power of attorney for health care or other record prohibits the
agent from making an anatomical gift;
(3) a parent of the donor, if the donor is under
[18] years or age and not emancipated; or
(4) the donor’s guardian.
SECTION 8.
PRECLUSIVE EFFECT OF ANATOMICAL GIFT, AMENDMENT, REVOCATION, OR REFUSAL.
(a) Except as otherwise
provided in subsections (g) and (h), in the absence of an
express, contrary indication by the donor, a person other than the donor is
barred from making, amending, or revoking an anatomical gift of a donor's body
or a part if the donor made an anatomical gift of the donor’s body or the part
under Section 5 or an amendment to an anatomical gift of the donor's body or
the part under Section 6.
(b) A donor’s revocation of
an anatomical gift of the donor’s body or a part under Section 6 is not a
refusal and does not bar another person specified in Section 4 or 9 from making
an anatomical gift of the donor’s body or a part under Section 5 or 10.
(c) Except as otherwise provided in
subsections (hi), in the absence of an express, contrary
indication by the individual set forth in the refusal, an individual’s
unrevoked refusal to make an anatomical gift of the individual’s body or a part
under Section 7 bars all other persons from making an anatomical gift of the
individual’s body or the part.
(d) If a person other than the donor makes an
unrevoked anatomical gift of the donor’s body or a part under Section 5 or an
amendment to an anatomical gift of the donor’s body or a part under Section 6,
another person may not make, amend, or revoke the gift of the donor’s body or
part under Section 10.
(e) A revocation of an
anatomical gift of the donor’s body or a part under Section 6 by a person other
than the donor does not bar another person from making an anatomical gift of
the body or a part under Section 5 or 10.
(f) In the absence of an
express, contrary indication by the donor or other person authorized to make an
anatomical gift under Section 4, an anatomical gift of a part is neither a
refusal to give another part nor a limitation on the making of an anatomical
gift of another part at a later time by the donor or another person.
(g) In the absence of an express, contrary
indication by the donor or other person authorized to make an anatomical gift
under Section 4, an anatomical gift of a part for one or more of the purposes
set forth in Section 4 of this [act] is not a limitation on the making of an
anatomical gift of the part for any of the other purposes by the donor or any
other person.
(gh) If a donor who is an
unemancipated minor dies under [18] years of age, a parent of the donor who is
reasonably available may revoke or amend an anatomical gift of the donor’s body
or part.
(hi) If an
unemancipated minor who signed a refusal dies under [18] years of age, a parent
of the individual who is reasonably available may revoke the individual’s
refusal.
SECTION 11. PERSONS THAT MAY RECEIVE ANATOMICAL GIFT.
(a)
An anatomical gift of a body or part may be made to the following named
persons:
(1)
a hospital, accredited medical or dental school, college, university, organ
procurement organization, or other appropriate person for research or
education;
(2)
an individual designated by the person making the anatomical gift if the
individual is the recipient of the part; or
(3)
an eye bank or tissue bank.
(b) If an anatomical gift of one or more specific
parts or of all parts is made in a document of gift that does not name a person
described in subsection (a) but identified the purpose for which an anatomical
gift may be used, the following rules apply:
(1)
If the part is an eye and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate eye bank.
(2)
If the part is tissue and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate tissue bank.
(3)
If the part is an organ and the gift is for the purpose of transplantation or
therapy, the gift passes to the organ procurement organization as custodian of
the organ to be allocated in accordance with subsection (h).
(4)
If the part is an organ, an eye, or tissue and the gift is for the purpose of
research or education, the gift passes to the appropriate procurement
organization.
(c)
If a document of gift specifies only a general intent to make an anatomical
gift by words such as “donor”, “organ donor”, or “body donor”, or by a symbol
or statement of similar import, the decedent’s parts may be used for
transplantation, therapy, research, or education. In this case, the following
rules apply:
(1)
If the part is an eye, the gift passes to the appropriate eye bank.
(2)
If the part is tissue, the gift passes to the appropriate tissue bank.
(3)
If the part is an organ, the gift passes to the organ procurement organization
as custodian of the organ to be allocated in accordance with subsection (h).
(d) For purposes of
subsection (b) and (c), if the purpose of an anatomical gift of a part is not
expressly set forth in the document of gift or the purposes are not set forth
in any priority in the document of gift, the gift must first be used for
transplantation or therapy and, if the gift cannot be used for transplantation
or therapy, the gift must be used for research or education.
(b) If an anatomical gift of one or more specific
parts or of all parts is made in a document of gift that does not name a person
described in subsection (a) but identifies the purpose for which an anatomical
gift may be used, the following rules apply:
(1)
If the part is an eye and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate eye bank.
(2)
If the part is tissue and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate tissue bank.
(3)
If the part is an organ and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate organ procurement organization as
custodian of the organ to be allocated in accordance with subsection (i).
(4)
If the part is an organ, an eye, or tissue and the gift is for the purpose of
research or education, the gift passes to the appropriate procurement
organization.
For
the purpose of this subsection, in the absence of an express, contrary
indication in the document of gift, if
there is more than one purpose of an anatomical gift set forth in the document
of gift but the purposes are not set forth in any priority, the gift must first
be used for transplantation or therapy and, if the gift cannot be used for
transplantation and therapy, the gift must be used for research or education.
(c)
If an anatomical gift of one or more specific parts is made in a document of
gift that does not name a person described in subsection (a) and does not
identify the purpose of the gift, the decedent’s parts may be used only for
transplantation or therapy, and the gift passes in accordance with subsection
(e).
(d)
If a document of gift specifies only a general intent to make an anatomical
gift by words such as “donor”, “organ donor”, or “body donor”, or by a symbol
or statement of similar import, the decedent’s parts may be used only for
transplantation or therapy, and the gift passes in accordance with subsection
(e).
(e)
For purposes of subsection (c) and (d), the following rules apply:
(1)
If the part is an eye, the gift passes to the appropriate eye bank.
(2) If the part is
tissue, the gift passes to the appropriate tissue bank.
(3)
If the part is an organ, the gift passes to the appropriate organ procurement
organization as custodian of the organ to be allocated in accordance with
subsection (i).
(f)
An anatomical gift of an organ for transplantation or therapy, other than an
anatomical gift under subsection (a)(2), passes to the organ procurement
organization or transplant hospital as custodian of the organ to be allocated
in accordance with subsection (i).
(g)
If an anatomical gift does not pass pursuant to subsections (a) through (e) or
the decedent’s body or part is not used for transplantation, therapy, research,
or education, custody of the body or part passes to the person under obligation
to dispose of the body or part.
(h)
A person may not accept an anatomical gift if the person knows that the gift
was not effectively made under Section 5 or 10 or if the person knows that the
decedent made a refusal under Section 7 that was not revoked. For purposes of
this subsection, if a person knows that an anatomical gift was made on a
document of gift, the person is deemed to know of any amendment or revocation
of the gift or any refusal to make an anatomical gift on the same document of
gift.
(i)
If an organ passes to an organ procurement organization or transplant hospital
for transplantation or therapy, the organ must be allocated in accordance with
the contractual obligations between the organ procurement organization or
transplant hospital and the Organ Procurement Transplantation Network
established by the National Organ Transplant Act, 42 U.S.C. Section 243 et.
seq.
3. Other
Matters:
In Section 4, we permit a parent of a minor
child to make an anatomical gift for that child. At a recent meeting I attended
I was asked why a parent of a minor child should be able to make a gift if the
minor did not consent. The questioner argued that our provision treats the
child as the parent’s property. While I don’t necessarily agree, I thought I
promised I’d raise this with the committee. A possible solution might be to
limit the parents ability to cases where the minor was not of the age to apply
for a license.
In Section 7 I have added language allowing
third party signing for a refuser who is unable to actually sign a record. The
language parallels the language in Section 6.
Some Commissioners have sent me style
suggestions which I’ve not included on the theory that style committee is
responsible for those decisions. I have also received some policy suggestions.
These are:
1. A suggestion that the definition
of “reasonably available” be changed to “Reasonably available" means an
individual able to be contacted without undue effort and willing and able to
act within a time period compatible with effecting an anatomical gift."
The reason given was “I have a concern that the person who is making the
determination of reasonably available would not necessarily know the
"medical criteria.”.
2. In “Section 5(d) the
second sentence is confusing. I would change it to "If the will is
declared invalid for testamentary purposes, the gift is nevertheless valid and
effective".
I also think that the
term "whether or not the will is probated" implies that a decision
has to be made. Also you cannot probate until 10 days after
death under the UPC. I suggest removing the language and
inserting "without waiting for probate.”
3. Section 9(5) and 9(6) I would suggest that an
adult grandchild has priority over a sibling. This would be consistent
with the next of kin and intestacy statutes that treat descendents ahead of
siblings. Also the siblings may be quite old when there are adult
grandchildren.
4. Section 9(10) add the words "or under
obligation" after "authority" some states look at it
differently. I am also thinking that anyone who has "assumed the
responsibility" should also be included.
5. Section 23(i) change the word
"additional costs" to "out of pocket expenses."