H. B. 4304
(By Delegates Pino, Guthrie, Blair and Walters)
[Introduced January 28, 2008; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §16-19-1, §16-19-2, §16-19-3, §16-19-4,
§16-19-5, §16-19-6, §16-19-7, §16-19-8, §16-19-9, §16-19-10,
§16-19-11, §16-19-12, §16-19-13 and §16-19-14 of the Code of
West Virginia, 1931, as amended; and to amend said article by
adding thereto nine new sections, designated §16-19-15,
§16-19-16, §16-19-17, §16-19-18, §16-19-19, §16-19-20,
§16-19-21, §16-19-22 and §16-19-23, all establishing the
Revised Anatomical Gift Act; providing for a short title;
establishing applicability; defining terms; identifying who
may make an anatomical gift before the donor's death,
establishing the manner of making an anatomical gift before
the donor's death; providing for amendment or revocation of an
anatomical gift before the donor's death; clarifying donor
right to refuse to make an anatomical gift and the effect of
such refusal; specifying the preclusive effect of an anatomical gift, amendment or revocation; identifying who may
make an anatomical gift of a body or part after death of the
donor; establishing the manner of making, amending or revoking
an anatomical gift after the decedent's death; identifying
persons and institutions to whom anatomical gifts may be made;
establishing presumptions for distribution of body and parts
if donor does not specify to whom gift passes; requiring first
responders, hospital staff and medical examiners to conduct a
reasonable search of the body of a decedent for evidence of an
anatomical gift or refusal to make a gift; specifying that
delivery of document of gift during donor's lifetime not
required; identifying who may examine a document of gift;
establishing rights and duties of procurement organization in
recovering a body or part the subject of an anatomical gift;
requiring hospitals to cooperate with procurement
organizations for purposes of recovering anatomical gifts;
creating the offense of knowingly buying or selling a body
part for transplantation or therapy; creating the offense of
intentionally falsifying, concealing, defacing or obliterating
a document of gift, amendment or revocation; establishing
immunity from civil liability for good faith efforts to comply
with article; specifying which law governs documents of gift;
establishing donor registry through Division of Motor Vehicles
and standards of operation; specifying effect of anatomical gift on advance health care directives; requiring cooperation
between medical examiner and procurement organization;
establishing standards and conditions for medical examiner's
release of body or part subject to anatomical gift to
procurement organizations; requiring authorization of
prosecuting attorney for release of body or recovery of part
where death is subject to criminal investigation; and
establishing relation to Electronic Signatures in Global and
National Commerce Act.
Be it enacted by the Legislature of West Virginia:
That §16-19-1, §16-19-2, §16-19-3, §16-19-4, §16-19-5,
§16-19-6, §16-19-7, §16-19-8, §16-19-9, §16-19-10, §16-19-11,
§16-19-12, §16-19-13 and §16-19-14 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that said article
be amended by adding thereto nine new sections, designated
§16-19-15, §16-19-16, §16-19-17, §16-19-18, §16-19-19, §16-19-20,
§16-19-21, §16-19-22 and §16-19-23, all to read as follows:
ARTICLE 19. ANATOMICAL GIFT ACT.
§16-19-1. Short title.
This article may be cited as the "Revised Anatomical Gift
Act."
§16-19-2. Applicability.
This article applies to an anatomical gift or to an amendment
to, revocation of or refusal to make an anatomical gift, whenever made.
§16-19-3. Definitions.
As used in this article:
(1) "Adult" means an individual who is at least eighteen (18)
years of age.
(2) "Agent" means an individual:
(A) Authorized by a medical power of attorney to make health
care decisions on behalf of a prospective donor; or
(B) Expressly authorized by any other record signed by the
donor to make an anatomical gift on his or her behalf.
(3) "Anatomical gift" means a donation of all or part of a
human body, to take effect after the donor's death, for the purpose
of transplantation, therapy, research or education.
(4) "Authorized person" means a person other than the donor
who is authorized to make an anatomical gift of the donor's body or
part by section four or section nine of this article.
(5) "Certification of death" means a written pronouncement of
death by an attending physician. Certification is required before
an attending physician can allow removal of any part from the
decedent's body for transplant purposes.
(6) "Decedent" means a deceased individual whose body is or
may be the source of an anatomical gift. The term "decedent"
includes a stillborn infant and, subject to restrictions imposed by
law other than this article, a fetus.
(7) "Disinterested witness" means a witness other than the
spouse, child, parent, sibling, grandchild, grandparent or guardian
of or another adult who exhibited special care and concern for an
individual who has made, amended, revoked or refused to make an
anatomical gift. The term "disinterested witness" does not include
a person to whom an anatomical gift may pass pursuant to section
eleven of this article.
(8) "Document of gift" means a donor card or other record used
to make an anatomical gift. The term includes a statement or
symbol on a driver's license, identification card or donor
registry.
(9) "Donor" means an individual whose body or part is the
subject of an anatomical gift.
(10) "Donor registry" means a database that contains records
of anatomical gifts and amendments to or revocations of anatomical
gifts.
(11) "Driver's license" means a license or permit issued by
the Division of Motor Vehicles to operate a vehicle.
(12) "Eye bank" means a person licensed, accredited, or
regulated under federal or state law to engage in the recovery,
screening, testing, processing, storage or distribution of human
eyes or portions of human eyes.
(13) "Guardian" means a person appointed by a court to make
decisions regarding the support, care, education, health or welfare of an individual. The term "guardian" does not include a guardian
ad litem.
(14) "Hospital" means a facility licensed as a hospital under
the law of any state or a facility operated as a hospital by the
United States, a state or a subdivision of a state.
(15) "Identification card" means an identification card issued
by the Division of Motor Vehicles pursuant to section one, article
two, chapter seventeen-b of this code.
(16) "Know" means to have actual knowledge. It does not
include constructive notice and other forms of imputed knowledge.
(17) "Medical examiner" means an individual appointed pursuant
to article twelve, chapter sixty-one of this code to perform death
investigations and to establish the cause and manner of death. The
term "medical examiner" includes any person designated by the
medical examiner to perform any duties required by this article.
(18) "Minor" means an individual who is under eighteen (18)
years of age.
(19) "Organ procurement organization" means a nonprofit entity
designated by the Secretary of the United States Department of
Health and Human Services as an organ procurement organization
pursuant to 42 U.S.C. §273(b).
(20) "Parent" means another person's natural or adoptive
mother or father whose parental rights have not been terminated by
a court of law.
(21) "Part" means an organ, an eye or tissue of a human being.
The term does not include the whole body.
(22) "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.
(23) "Physician" means an individual authorized to practice
medicine or osteopathy under the law of any state.
(24) "Physician assistant" has the meaning provided in section
sixteen, article three, chapter thirty of this code.
(25) "Procurement organization" means an eye bank, organ
procurement organization or tissue bank.
(26) "Prospective donor" means an individual who is dead or
near death and has been determined by a procurement organization to
have a part that could be medically suitable for transplantation,
therapy, research or education. The term "prospective donor" does
not include an individual who has made a refusal.
(27) "Reasonably available" means able to be contacted by a
procurement organization without undue effort and willing and able
to act in a timely manner consistent with existing medical criteria
necessary for the making of an anatomical gift.
(28) "Recipient" means an individual into whose body a
decedent's part has been or is intended to be transplanted.
(29) "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.
(30) "Refusal" means a record created under section seven of
this article that expressly states an individual's intent to bar
other persons from making an anatomical gift of his or her body or
part.
(31) "Sign" means to execute or adopt a tangible symbol or
attach to or logically associate with the record an electronic
symbol, sound or process, with the present intent to authenticate
or adopt a record.
(32) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands, or any
territory or insular possession subject to the jurisdiction of the
United States.
(33) "Surrogate" means an individual eighteen years of age or
older who is reasonably available, is willing to make health care
decisions on behalf of an incapacitated person, possesses the
capacity to make health care decisions and is identified or
selected by the attending physician or advanced nurse practitioner
in accordance with the provisions of article thirty of this chapter
as the person who is to make those decisions in accordance with the
provisions of this article.
(34) "Technician" means an individual qualified to remove or process parts by an organization that is licensed, accredited or
regulated under federal or state law. The term "technician"
includes an enucleator,
i.e., an individual who removes or
processes eyes or parts of eyes.
(35) "Tissue" means a portion of the human body other than an
organ or an eye. The term "tissue" does not include blood unless
the blood is donated for the purpose of research or education.
(36) "Tissue bank" means a person that is licensed, accredited
or regulated under federal or state law to engage in the recovery,
screening, testing, processing, storage or distribution of tissue.
(37) "Transplant hospital" means a hospital that furnishes
organ transplants and other medical and surgical specialty services
required for the care of transplant patients.
§60-19-4. Who may make anatomical gift before donor's death.
Subject to section eight of this article, an anatomical gift
may be made during the life of the donor for the purpose of
transplantation, therapy, research or education by:
(1) The donor, if the donor is an adult;
(2) The donor, if the donor is a minor and is emancipated or
sixteen (16) years of age or older;
(3) An agent of the donor, unless the medical power of
attorney or other record prohibits the agent from making an
anatomical gift;
(4) A parent of the donor, if the donor is an unemancipated minor; or
(5) The donor's guardian.
§60-19-5. Manner of making anatomical gift before donor's death.
(a) A donor may make an anatomical gift:
(1) By authorizing a statement or symbol to be imprinted on
his or her driver's license or identification card indicating that
he or she has made an anatomical gift;
(2) In a will;
(3) During a terminal illness or injury, by any form of
communication addressed to at least two adults, at least one of
whom is a disinterested witness; or
(4) As provided in subsection (b) of this section.
(b) (1) A donor or a person authorized by section four of this
article may make a gift by:
(A) A donor card or other record signed by the donor or the
authorized person; or
(B) Authorizing a statement or symbol indicating that the
donor has made an anatomical gift to be included on a donor
registry.
(2) If the donor or the authorized person is physically unable
to sign a record, another individual may sign at the direction of
the donor or the authorized person if the document of gift:
(A) Is witnessed and signed by at least two adults, at least
one of whom is a disinterested witness; and
(B) Contains a statement that it has been signed and witnessed
as required by paragraph (A) of this subdivision.
(c) Revocation, suspension, expiration or cancellation of a
driver's license or identification card upon which an anatomical
gift is indicated does not invalidate the gift.
(d) An anatomical gift made by will takes effect upon the
donor's death regardless of whether the will is probated.
Invalidation of the will after the donor's death does not
invalidate the gift.
§60-19-6. Amending or revoking anatomical gift before donor's
death.
(a) Subject to section eight of this article, a donor or a
person authorized pursuant to section four of this article may
amend or revoke an anatomical gift by:
(1) (A) A record signed and dated by the donor or the
authorized person.
(B) If the donor or the authorized person is physically unable
to sign a record, another individual may sign at the direction of
the donor or the authorized person if the document of gift:
(i) Is witnessed and signed by at least two adults, at least
one of whom is a disinterested witness; and
(ii) Contains a statement that it has been signed and
witnessed as required by subparagraph (i) of this paragraph; or
(2) A later-executed document of gift that amends or revokes a previous anatomical gift, or portion of an anatomical gift,
either expressly or by inconsistency.
(b) Subject to section eight of this article, a donor or a
person authorized by section four of this article may revoke an
anatomical gift by destroying or cancelling the document of gift,
or the relevant portion of the document of gift, with the intent to
revoke the gift.
(c) During a terminal illness or injury, a donor may amend or
revoke an anatomical gift that was not made in a will by any form
of communication addressed to at least two adults, at least one of
whom is a disinterested witness.
(d) A donor who makes an anatomical gift in a will may amend
or revoke the gift in the manner provided for amendment or
revocation of wills or as provided in subsection (a) of this
section.
§60-19-7. Refusal to make anatomical gift; effect of refusal.
(a) An individual may express his or her refusal to make an
anatomical gift of his or her body or body parts by:
(1) A record signed by the individual. If the individual is
physically unable to sign, another person acting at the direction
of the individual may sign if the refusal:
(A) Is witnessed and signed by at least two adults, at least
one of whom is a disinterested witness, at the request of the
individual; and
(B) Contains a statement that it has been signed and witnessed
as provided in paragraph (A) of this subdivision;
(2) The individual's will, regardless of whether the will is
admitted to probate or invalidated after the individual's death; or
(3) During a terminal illness or injury of the individual, any
form of communication made by the individual addressed to at least
two adults, at least one of whom is a disinterested witness.
(b) An individual who has made a refusal may amend or revoke
the refusal:
(1) In the manner provided in subsection (a) of this section
for making a refusal;
(2) By subsequently making an anatomical gift pursuant to
section five of this article that is inconsistent with the refusal;
or
(3) By destroying or canceling the record evidencing the
refusal, or the portion of the record used to make the refusal,
with the intent to revoke the refusal.
(c) Except as otherwise provided in section eight of this
article, in the absence of an express, contrary indication set
forth in the refusal, an individual's unrevoked refusal to make an
anatomical gift of his or her body or part bars all other persons
from making an anatomical gift of the individual's body or part.
§60-19-8. Preclusive effect of anatomical gift, amendment, or
revocation.
(a) Except as otherwise provided in subsections (g) and (f) of
this section, in the absence of an express, contrary indication by
the donor who has made or amended an anatomical gift, a person
other than the donor is barred from making, amending or revoking an
anatomical gift of the donor's body or part.
(b) A donor's revocation of an anatomical gift is not a
refusal and bars another authorized person from making an
anatomical gift of the donor's body or part pursuant to section
five or section ten of this article.
(c) If an authorized person makes an unrevoked anatomical gift
or an amendment to an anatomical gift of the donor's body or part,
no other person may make, amend or revoke the anatomical gift after
the donor's death.
(d) A revocation of an anatomical gift under section six of
this article by an authorized person does not bar another person
from making an anatomical gift of the body or part under section
five or section ten of this article.
(e) In the absence of an express, contrary indication by the
donor or the person authorized to make an anatomical gift under
section four of this article, an anatomical gift of a part is
neither a refusal to give another part nor a limitation on the
making of an anatomical gift of another part at a later time by the
donor or another person.
(f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under
section four of this article, an anatomical gift of a part for one
purpose is not a limitation on the making of an anatomical gift of
the part for any of the other purposes by the donor or any other
person under section five or section ten of this article.
(g) If a donor who is an unemancipated minor dies, a parent of
the donor who is reasonably available may revoke or amend an
anatomical gift of the donor's body or part.
(h) If an unemancipated minor who signed a refusal dies, a
parent of the minor who is reasonably available may revoke the
minor's refusal.
§60-19-9. Who may make anatomical gift of decedent's body or part.
(a) Unless barred by section seven or section eight of this
article, an anatomical gift of a decedent's body or part for
purpose of transplantation, therapy, research or education may be
made by any member of the following classes of persons who is
reasonably available, in the order of priority listed:
(1) A person holding a medical power of attorney or another
agent of the decedent at the time of death who could have made an
anatomical gift under section four of this article immediately
before the decedent's death;
(2) The spouse of the decedent, unless in the six (6) months
prior to the decedent's death the spouse has lived separate and
apart from the decedent in a separate place of abode without cohabitation;
(3) Adult children of the decedent;
(4) The person acting as the guardian of the decedent at the
time of death;
(5) An appointed health care surrogate;
(6) Parents of the decedent;
(7) Adult siblings of the decedent;
(8) Adult grandchildren of the decedent;
(9) Grandparents of the decedent; or
(10) An adult who exhibited special care and concern for the
decedent.
(b) If there is more than one member of a class entitled to
make an anatomical gift, any member of the class may make the
anatomical gift unless he or she or a person to whom the anatomical
gift may pass pursuant to section eleven of this section knows of
an objection by another member of the class. If an objection is
known, the majority of the members of the same class must be
opposed to the donation in order for the donation to be revoked. In
the event of a tie vote, the attending physician or advanced nurse
practitioner shall appoint a health care surrogate to decide
whether to make an anatomical gift of the decedent's body or part
for the purpose of transplantation, therapy, research or education.
(c) A person may not make an anatomical gift if, at the time
of the decedent's death, a person in a prior class is reasonably available to make or to object to the making of an anatomical gift.
§60-19-10. Manner of making, amending, or revoking anatomical gift
of decedent's body or part.
(a) A person authorized to make an anatomical gift under
section nine of this article may do so by:
(1) A document of gift signed by the authorized person; or
(2) An oral communication by the authorized person that is
electronically recorded or is contemporaneously reduced to a record
and signed by the person receiving the oral communication.
(b) An anatomical gift by a person authorized by section nine
of this article may be amended or revoked orally or in writing by
any member of a prior class who is reasonably available. If more
than one member of the prior class is reasonably available, the
gift made by the authorized person may be revoked only if a
majority of the members of the same class are opposed to the
anatomical gift. In the event of a tie vote, a health care
surrogate shall be appointed to decide whether to honor, amend or
revoke the anatomical gift of the decedent's body or part.
(c) A revocation under subsection (b) of this section is
effective only if, before an incision has been made to remove a
part from the donor's body or before invasive procedures have begun
to prepare the recipient, the procurement organization, transplant
hospital or physician or technician knows of the revocation.
§60-19-11. Persons who may receive anatomical gift; purpose of anatomical gift.
(a) An anatomical gift may be made to the following persons
named in the document of gift:
(1) A hospital; accredited medical school, dental school,
college, or university; organ procurement organization; or other
appropriate person, for research or education;
(2) An individual designated by the person making the
anatomical gift as the recipient of the part; or
(3) An eye bank or tissue bank.
(b) If an anatomical gift is made to an individual under
subdivision (2), subsection (a) of this section and the donated
body part cannot be transplanted into the named individual, in the
absence of an express, contrary indication by the person making the
anatomical gift, the part passes pursuant to subsection (g) of this
section;
(c) If a document of gift makes an anatomical gift and
identifies the purpose for which the gift may be used but does not
designate a person described in subsection (a) of this section to
receive the gift, the following rules apply:
(1) If the part is an eye and the gift is for the purpose of
transplantation or therapy, the gift passes to the appropriate eye
bank.
(2) If the part is tissue and the gift is for the purpose of
transplantation or therapy, the gift passes to the appropriate tissue bank.
(3) If the part is an organ and the gift is for the purpose of
transplantation or therapy, the gift passes to the appropriate
organ procurement organization as custodian of the organ.
(4) If the part is an organ, an eye, or tissue and the gift is
for the purpose of research or education, the gift passes to the
appropriate procurement organization.
(d) If the document of gift states more than one purpose of an
anatomical gift but does not specify the priority, the gift must be
used for transplantation or therapy, if suitable. If the gift
cannot be used for transplantation or therapy, the gift may be used
for research or education.
(e) If the document of gift does not identify the purpose of
the anatomical gift, the gift may be used only for transplantation
or therapy and passes in accordance with subsection (g) of this
section.
(f) If a document of gift specifies only a general intent to
make an anatomical gift by using words such as "donor", "organ
donor", or "body donor", or by a symbol or statement of similar
import, the gift may be used for transplantation, research or
therapy and passes in accordance with subsection (g) of this
section.
(g) For purposes of subsections (b), (e), and (f) of this
section, and anatomical gift passes in the following manner:
(1) If the part is an eye, the gift passes to the appropriate
eye bank.
(2) If the part is tissue, the gift passes to the appropriate
tissue bank.
(3) If the part is an organ, the gift passes to the
appropriate organ procurement organization as custodian of the
organ.
(h) An anatomical gift of an organ for transplantation or
therapy, other than a gift to an individual described in
subdivision (2), subsection (a) of this section, passes to an organ
procurement organization as custodian of the organ.
(i) If an anatomical gift does not pass pursuant to
subsections (a) through (h) of this section or the body or part is
not used for transplantation, therapy, research, or education,
custody of the body or part passes to the person under obligation
to dispose of the body or part.
(j) A person may not accept an anatomical gift if he or she
knows that:
(1) The gift was not effectively made pursuant to this
article; or
(2) The decedent made a refusal under section seven of this
article that was not revoked.
(k) For purposes of subsection (j), if a person knows that an
anatomical gift was made in a document of gift, the person is presumed to know of any amendment or revocation of the gift or any
refusal to make an anatomical gift in the same document of gift.
(
l) Except as provided in subdivision (2), subsection (a) of
this section, nothing in this article affects the allocation of
organs for transplantation or therapy.
§60-19-12. Search and notification.
(a) A law-enforcement officer, firefighter, paramedic or other
emergency rescuer finding an individual he or she reasonably
believes is dead or near death shall make a reasonable search of
the individual for a document of gift or other information
identifying the individual as a donor or as having made a refusal.
If a document of gift or a refusal is located by the search and the
individual is taken to a hospital, the person who conducted the
search shall send the document of gift or refusal to the hospital.
(b) If no other source of the information is immediately
available, hospital staff shall search an individual reasonably
believed to be dead or near death as soon as practical after the
arrival at the hospital for a document of gift or other information
identifying the individual as a donor or as having made a refusal.
(c) A medical examiner shall conduct a reasonable search of an
individual whose body is placed in his or her custody for a
document of gift or other information identifying the individual as
a donor or as having made a refusal.
(d) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be
subject to administrative sanctions.
§60-19-13. Delivery of document of gift not required; right to
examine.
(a) A document of gift need not be delivered during the
donor's lifetime to be effective.
(b) Upon or after an individual's death, a person in
possession of a document of gift or a refusal with respect to the
decedent shall allow: (1) A person authorized to make or object to
the making of an anatomical gift with respect to the decedent; or
(2) a person to whom the gift could pass under section eleven of
this article to examine and copy the document of gift or refusal.
§60-19-14. Rights and duties of procurement organization and
others.
(a) When a hospital refers an individual at or near death to
a procurement organization, the organization shall make a
reasonable search of the records of the Division of Motor Vehicles
and any donor registry it knows of for the geographical area in
which the individual resides to ascertain whether the individual
has made an anatomical gift.
(b) The Division of Motor Vehicles shall allow a procurement
organization reasonable access to information in the division's
records to ascertain whether an individual at or near death is a
donor. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation pursuant to article
three, chapter twenty-nine-a of this code to facilitate procurement
agencies' access to records pursuant to this subsection.
(c) When a hospital refers an individual at or near death to
a procurement organization, the organization may conduct any
reasonable examination necessary to ensure the medical suitability
of a part that is or could be the subject of an anatomical gift for
transplantation, therapy, research, or education from a donor or a
prospective donor. During the examination period, measures
necessary to ensure the medical suitability of the part may not be
withdrawn unless the hospital or procurement organization knows
that the prospective donor expressed a contrary intent.
(d) Unless prohibited by law, at any time after a donor's
death, a person to whom a decedent's part passes under section
eleven of this article may conduct any reasonable examination
necessary to ensure the medical suitability of the body or part for
its intended purpose.
(e) Unless prohibited by law, an examination under subsection
(c) or (d) of this section may include an examination of all
medical and dental records of the donor or prospective donor.
(f) Upon the death of a minor who was a donor or had signed a
refusal, unless a procurement organization knows the minor is
emancipated, the procurement organization shall conduct a
reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift
or revoke the refusal.
(g) Upon referral by a hospital under subsection (a) of this
section, a procurement organization shall make a reasonable search
for any person listed in section nine of this article having
priority to make an anatomical gift on behalf of a prospective
donor. If a procurement organization receives information that an
anatomical gift to any other person was made, amended or revoked,
it shall promptly advise the other person of all relevant
information.
(h) Except as provided in and section twenty-two of this
article, the rights of the person to whom a part passes under
section eleven of this article are superior to the rights of all
others. A person may accept or reject an anatomical gift, in whole
or in part. Subject to the terms of the document of gift and this
article, a person that accepts an anatomical gift of an entire body
may allow embalming, burial or cremation, and use of remains in a
funeral service. If the gift is of a part, the person to whom the
part passes under section eleven of this article shall, upon the
death of the donor and before embalming, burial or cremation, cause
the part to be removed without unnecessary mutilation.
(i) Neither the physician or the physician assistant who
attends the decedent at death nor the physician or the physician
assistant who determines the time of death may participate in the procedures for removing or transplanting a part from the decedent.
(j) A physician or technician may remove a donated part from
the body of a donor that the physician or technician is qualified
to remove.
§60-19-15. Coordination of procurement and use.
Each hospital licensed in this state shall enter into
agreements or affiliations with procurement organizations for
coordinating procurement and use of anatomical gifts.
§60-19-16. Prohibited acts; sale or purchase of parts prohibited.
(a) Except as provided in subsection (b) of this section, a
person who knowingly buys or sells, for valuable consideration, a
part for transplantation or therapy is guilty of a felony, and upon
conviction thereof, shall be fined not more than fifty thousand
dollars ($50,000) or imprisoned in a state correctional facility
for a term of not more than five years, or both fined and
imprisoned.
(b) A person who, in order to obtain a financial gain,
intentionally falsifies, forges, conceals, defaces or obliterates
a document of gift, an amendment or revocation of a document of
gift or a refusal is guilty of a felony, and upon conviction
thereof, shall be fined not more than fifty thousand dollars
($50,000) or imprisoned in a state correctional facility for a term
of not more than five years.
(c) Nothing in this section prohibits a person from charging reasonable amounts for the costs of removing, processing,
preserving, quality control, storing, transporting, implanting or
disposing of a part.
§60-19-17. Immunity.
(a) A person, including a medical examiner, who acts in
accordance with this article or with the applicable anatomical gift
law of another state, or attempts in good faith to do so, is not
liable for the act in a civil action, criminal prosecution or
administrative proceeding.
(b) Neither the person making an anatomical gift nor the
donor's estate is liable for any injury or damage that results from
the making or use of the gift.
(c) In determining whether an anatomical gift has been made,
amended or revoked under this article, a person to whom a gift
passes may rely upon an individual's representations that he or she
is the donor or a person authorized to make a gift of the body or
part pursuant to subsection (a), section nine of this article,
unless the person to whom the gift may pass knows that the
representation is untrue.
§60-19-18. Law governing validity; choice of law as to execution
of document of gift; presumption of validity.
(a) A document of gift is valid if executed in accordance
with:
(1) This article;
(2) The laws of the state or country where it was executed; or
(3) The laws of the state or country where the person making
the anatomical gift was domiciled, has a place of residence, or was
a national at the time the document of gift was executed.
(b) If a document of gift is valid under this section, the law
of this state governs the interpretation of the document of gift.
(c) A person may presume that a document of gift or amendment
of an anatomical gift is valid unless that person knows that it was
not validly executed or was revoked.
§60-19-19. Donor registry.
(a) The Division of Motor Vehicles may establish or contract
for the establishment of a donor registry.
(b) The Division of Motor Vehicles shall cooperate with a
person that administers any donor registry established or
contracted for pursuant to this section or recognized for the
purpose of transferring to the donor registry all relevant
information regarding a donor's making, amendment to, or revocation
of an anatomical gift.
(c) A donor registry must:
(1) Allow a donor or person authorized under section four of
this article to include on the donor registry a statement or symbol
that the donor has made, amended or revoked an anatomical gift;
(2) Be accessible to a procurement organization to allow it to
obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the
donor or prospective donor has made, amended or revoked an
anatomical gift; and
(3) Be accessible for purposes of paragraphs (1) and (2) of
this subsection twenty-four hours a day, seven days a week.
(d) Personally identifiable information on a donor registry
about a donor or prospective donor may not be used or disclosed
without the express consent of the donor, prospective donor or
person that made the anatomical gift for any purpose other than to
determine, at or near death of the donor or prospective donor,
whether the donor or prospective donor has made, amended or revoked
an anatomical gift.
(e) This section does not prohibit any person from creating or
maintaining a donor registry that is not established by or under
contract with the state. Any private donor registry must comply
with subsections (c) and (d) of this section.
§60-19-20. Effect of anatomical gift on advance health-care
directive.
(a) In this section:
(1) "Advance health-care directive" means a medical power of
attorney or a record signed or authorized by a prospective donor
containing the prospective donor's direction concerning a
health-care decision for the prospective donor.
(2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may
be withheld or withdrawn from the prospective donor.
(3) "Health-care decision" means any decision regarding the
health care of the prospective donor.
(b) If a prospective donor has a declaration or advance health
care directive, the terms of which are in conflict with the express
or implied terms of a potential anatomical gift with regard to
administration of measures necessary to ensure the medical
suitability of a part for transplantation or therapy, the attending
physician and the prospective donor shall confer to resolve the
conflict.
(1) If the prospective donor is incapable of resolving the
conflict, an agent acting under the prospective donor's declaration
or directive, or, if none or the agent is not reasonably available,
another person authorized by law other than this article to make
health-care decisions on behalf of the prospective donor, shall act
for the donor to resolve the conflict as quickly as possible.
(2) A procurement organization and any person authorized to
make an anatomical gift on behalf of a prospective donor pursuant
to section nine of this article shall provide any information
relevant to the resolution of the conflict.
(3) Pending resolution of the conflict, measures necessary to
ensure the medical suitability of a part may not be withheld or
withdrawn from the prospective donor unless doing so is contraindicated by appropriate end-of-life care.
§60-19-21. Cooperation between medical examiner and procurement
organization.
(a) A medical examiner shall cooperate with a procurement
organization to maximize the opportunity to recover anatomical
gifts for the purpose of transplantation, therapy, research or
education.
(b) If a medical examiner receives notice from a procurement
organization that an anatomical gift was or might have been made
with respect to a decedent whose body is in the custody of the
medical examiner, the medical examiner shall conduct a post-mortem
examination in a manner and within a period compatible with its
preservation for the purposes of the gift, unless the medical
examiner denies recovery in accordance with section twenty-two of
this article.
(c) While the decedent's body is in the custody of a medical
examiner, a part may not be removed for transplantation, therapy,
research or education or the body delivered for research and
education unless the part or the body is the subject of an
anatomical gift. This subsection does not preclude a medical
examiner from performing a medicolegal investigation upon the
decedent's body or parts while in his or her custody.
§60-19-22. Facilitation of anatomical gift from decedent whose
body is under jurisdiction of medical examiner.
(a) Except as provided in subsection (e) of this section, the
medical examiner shall, upon request of a procurement organization,
release to the procurement organization the name, contact
information and available medical and social history of a decedent
whose body is in the custody of the medical examiner. If the
decedent's body or part is medically suitable for transplantation,
therapy, research or education, the medical examiner shall release
post-mortem examination results to the procurement organization,
subject to subsection (e) of this section. The procurement
organization may make a subsequent disclosure of the post-mortem
examination results or other information received from the medical
examiner only if relevant to transplantation or therapy.
(b) The medical examiner may conduct a medicolegal examination
by reviewing all medical records, laboratory test results, x-rays,
other diagnostic results and other information that any person
possesses about a donor or prospective donor whose body is under
the jurisdiction of the medical examiner which the medical examiner
determines may be relevant to the investigation.
(c) A person with any information requested by a medical
examiner pursuant to subsection (b) of this section shall provide
that information as soon as possible to allow the medical examiner
to conduct the medicolegal investigation within a period compatible
with the preservation of parts for the purpose of transplantation,
therapy, research or education.
(d) If the medical examiner determines that a post-mortem
examination is not required or that a post-mortem examination is
required but that the recovery of the part that is the subject of
an anatomical gift will not interfere with the examination, the
medical examiner and procurement organization shall cooperate in
the timely removal of the part from the decedent for the purpose of
transplantation, therapy, research or education.
(e) If the decedent's death is the subject of a criminal
investigation, the medical examiner may not release the body or
part that is the subject of an anatomical gift or the social
history, medical history or post-mortem examination results without
the express authorization of the prosecuting attorney of the county
having jurisdiction over the investigation.
(f) A medical examiner has the authority to deny recovery of
a part subject to an anatomical gift if he or she reasonably
believes that recovery interferes with the post-mortem
investigation into the cause or manner of the decedent's death. If
the medical examiner is inclined to deny recovery, he or she shall
first consult with the procurement organization about the proposed
recovery. Following consultation, and in the absence of mutually
agreed-upon protocols to resolve any conflict between the medical
examiner and the procurement organization, the medical examiner
shall, at the request of the procurement organization, attend a
procedure for removing the part before making a final decision. During the removal procedure, the medical examiner may decide
whether to allow recovery to proceed or to deny recovery.
(g) If the medical examiner denies recovery of the part, he or
she shall:
(1) Provide the procurement organization with a written
explanation of the specific reasons for not allowing recovery of
the part; and
(2) Include in the medical examiner's records the specific
reasons for denying recovery of the part.
(h) If the medical examiner allows recovery of a part, the
procurement organization shall, upon request, cause the physician
or technician who removes the part to provide the medical examiner
with a written report describing the condition of the part, a
biopsy, a photograph or any other information and observations that
would assist in the post-mortem examination.
(i) A medical examiner required to be present at a removal
procedure pursuant to subsection (f) of this section is entitled to
reimbursement for the expenses associated with appearing at the
recovery procedure from the procurement organization which
requested his or her presence.
(j) A medical examiner performing any of the functions
specified in this section shall comply with all applicable
provisions of article twelve, chapter sixty-one of this code.
§60-19-23. 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. §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).
NOTE: This bill repeals the current Anatomical Gift Act and
replaces it with a Revised Act based on the Uniform Laws
Commission's 2006 revision. The Revised Act makes it easier to
make a document of gift, particularly with regard to organ donor
notations on drivers' licenses and ID cards; authorizes additional
persons, such as a medical power of attorney or health care
surrogate, to make anatomical gifts on behalf of an incapacitated
person before death actually occurs; expands the list of those who
may make an anatomical gift after an individual dies without a
document of gift; establishes presumptions for distribution for
body parts where the anatomical gift that does not specify to whom
the gift passes; accommodates the use of donor registries; clearly
provides for a document of refusal if an individual does not want
organs donated; establishes criminal penalties for
misrepresentation of a document of gift for the purposes of selling
organs or tissue; and resolves ambiguity and conflict between
anatomical gifts and "Do Not Resuscitate" instructions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
"This bill was recommend for passing at the 2008 legislative
session by the Commission on Interstate Cooperation."