Senate Bill No. 143
(By Senators Anderson, Scott, White, Kessler, Deem and Sharpe)
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[Introduced January 14, 1998; referred to the Committee
on Interstate Cooperation; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact article nineteen, chapter sixteen of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to the uniform anatomical
gift act; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That article nineteen, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 19. UNIFORM ANATOMICAL GIFT ACT.
§16-19-1. Definitions.
As used in this article:
(1) "Anatomical gift" means a donation of all or part of a
human body to take effect upon or after death.
(2) "Decedent" means a deceased individual and includes a
stillborn infant or fetus.
(3) "Document of gift" means a card, a statement attached to
or imprinted on a motor vehicle operator's or chauffeur's
license, a will, or other writing used to make an anatomical
gift.
(4) "Donor" means an individual who makes an anatomical gift
of all or part of the individual's body.
(5) "Enucleator" means an individual who is certified to
remove or process eyes or parts of eyes.
(6) "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.
(7) "Part" means an organ, tissue, eye, bone, artery, blood,
fluid or other portion of a human body.
(8) "Person" means an individual, corporation, business
trust, estate, trust, partnership, joint venture, association,
government, governmental subdivision or agency, or any other
legal or commercial entity.
(9) "Physician" or "surgeon" means an individual licensed or
otherwise authorized to practice medicine and surgery or
osteopathy and surgery under the laws of any state.
(10) "Procurement organization" means a person licensed, accredited, or approved under the laws of any state for
procurement, distribution or storage of human bodies or parts.
(11) "State" means a state, territory or possession of the
United States, the District of Columbia or the Commonwealth of
Puerto Rico.
(12) "Technician" means an individual who is certified to
remove or process a part.
§16-19-2. Making, amending, revoking, and refusing to make
anatomical gifts by individual.
(a) An individual who is at least eighteen years of age may:
(i) Make an anatomical gift for any of the purposes stated in
subsection (a), section six of this article; (ii) limit an
anatomical gift to one or more of those purposes; or (iii) refuse
to make an anatomical gift.
(b) An anatomical gift may be made only by a document of
gift signed by the donor. If the donor cannot sign, the document
of gift must be signed by another individual and by two
witnesses, all of whom have signed at the direction and in the
presence of the donor and of each other, and state that it has
been signed.
(c) If a document of gift is attached to or imprinted on a
donor's motor vehicle operator's or chauffeur's license, the
document of gift must comply with subsection (b) of this section.
Revocation, suspension, expiration, or cancellation of the license does not invalidate the anatomical gift.
(d) A document of gift may designate a particular physician
or surgeon to carry out the appropriate procedures. In the
absence of a designation or if the designee is not available, the
donee or other person authorized to accept the anatomical gift
may employ or authorize any physician, surgeon, technician or
enucleator to carry out the appropriate procedures.
(e) An anatomical gift by will takes effect upon death of
the testator or testatrix, whether or not the will is probated.
If, after death, the will is declared invalid for testamentary
purposes, the validity of the anatomical gift is unaffected.
(f) A donor may amend or revoke an anatomical gift, not made
by will, only by:
(1) A signed statement;
(2) An oral statement made in the presence of two
individuals;
(3) Any form of communication during a terminal illness or
injury addressed to a physician or surgeon; or
(4) The delivery of a signed statement to a specified donee
to whom a document of gift had been delivered.
(g) The donor of an anatomical gift made by will may amend
or revoke the gift in the manner provided for amendment or
revocation of wills, or as provided in subsection (f) of this
section.
(h) 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.
(i) An individual may refuse to make an anatomical gift of
the individual's body or part by: (i) A writing signed in the
same manner as a document of gift; (ii) a statement attached to
or imprinted on a donor's motor vehicle operator's or chauffeur's
license; or (iii) any other writing used to identify the
individual as refusing to make an anatomical gift. During a
terminal illness or injury, the refusal may be an oral statement
or other form of communication.
(j) In the absence of contrary indications by the donor, an
anatomical gift of a part is neither a refusal to give other
parts nor a limitation on an anatomical gift under section three
of this article or on a removal or release of other parts under
section four of this article.
(k) In the absence of contrary indications by the donor, a
revocation or amendment of an anatomical gift is not a refusal to
make another anatomical gift. If the donor intends a revocation
to be a refusal to make an anatomical gift, the donor shall make
the refusal pursuant to subsection (i) of this section.
§16-19-3. Making, revoking, and objecting to anatomical gifts,
by others.
(a) Any member of the following classes of persons, in the order of priority listed, may make an anatomical gift of all or
a part of the decedent's body for an authorized purpose, unless
the decedent, at the time of death, has made an unrevoked refusal
to make that anatomical gift:
(1) The spouse of the decedent;
(2) An adult son or daughter of the decedent;
(3) Either parent of the decedent;
(4) An adult brother or sister of the decedent;
(5) A grandparent of the decedent; and
(6) A guardian of the person of the decedent at the time of
death.
(b) An anatomical gift may not be made by a person listed
in subsection (a) of this section if:
(1) A person in a prior class is available at the time of
death to make an anatomical gift;
(2) The person proposing to make an anatomical gift knows of
a refusal or contrary indications by the decedent; or
(3) The person proposing to make an anatomical gift knows of
an objection to making an anatomical gift by a member of the
person's class or a prior class.
(c) An anatomical gift by a person authorized under
subsection (a) of this section must be made by: (i) A document of
gift signed by the person; or (ii) the person's telegraphic,
recorded telephonic, or other recorded message, or other form of communication from the person that is contemporaneously reduced
to writing and signed by the recipient.
(d) An anatomical gift by a person authorized under
subsection (a) of this section may be revoked by any member of
the same or a prior class if, before procedures have begun for
the removal of a part from the body of the decedent, the
physician, surgeon, technician or enucleator removing the part
knows of the revocation.
(e) A failure to make an anatomical gift under subsection
(a) of this section is not an objection to making an anatomical
gift.
§16-19-4. Authorization by coroner, medical examiner or local
public health official.
(a) The coroner or chief medical examiner may release and
permit the removal of a part from a body within that official's
custody, for transplantation or therapy, if:
(1) The official has received a request for the part from a
hospital, physician, surgeon or procurement organization;
(2) The official has made a reasonable effort, taking into
account the useful life of the part, to locate and examine the
decedent's medical records and inform persons listed in
subsection (a), section three of this article of their option to
make, or object to making, an anatomical gift;
(3) The official does not know of a refusal or contrary indication by the decedent or objection by a person having
priority to act as listed in subsection (a), section three of
this article;
(4) The removal will be performed by a physician, surgeon or
technician; but in the case of eyes, the removal will either be
performed by one of them or by an enucleator;
(5) The removal will not interfere with any autopsy or
investigation;
(6) The removal will be in accordance with accepted medical
standards; and
(7) Cosmetic restoration will be done, if appropriate.
(b) If the body is not within the custody of the coroner or
chief medical examiner, the local public health officer may
release and permit the removal of any part from a body in that
officer's custody for transplantation or therapy if the
requirements of subsection (a) of this section are met.
(c) An official releasing and permitting the removal of a
part shall maintain a permanent record of the name of the
decedent, the person making the request, the date and purpose of
the request, the part requested, and the person to whom it was
released.
§16-19-5. Routine inquiry and required request; search and
notification.
(a) On or before admission to a hospital, or as soon as possible thereafter, a person designated by the hospital shall
ask each patient who is at least eighteen years of age: "Are you
an organ or tissue donor"? If the answer is affirmative the
person shall request a copy of the document of gift. If the
answer is negative or there is no answer and the attending
physician consents, the person designated shall discuss with the
patient the option to make or refuse to make an anatomical gift.
The answer to the question, an available copy of any document of
gift or refusal to make an anatomical gift, and any other
relevant information, must be placed in the patient's medical
record.
(b) If, at or near the time of death of a patient, there is
no medical record that the patient has made or refused to make an
anatomical gift, the hospital administrator or a representative
designated by the administrator shall discuss the option to make
or refuse to make an anatomical gift and request the making of an
anatomical gift pursuant to subsection (a), section three of this
article. The request must be made with reasonable discretion and
sensitivity to the circumstances of the family. A request is not
required if the gift is not suitable, based upon accepted medical
standards, for a purpose specified in section six of this
article. An entry must be made in the medical record of the
patient, stating the name and affiliation of the individual
making the request, and of the name, response and relationship to the patient of the person to whom the request was made. The
secretary of the department of health and human resources shall
promulgate rules to implement this subsection.
(c) The following persons shall make a reasonable search
for a document of gift or other information identifying the
bearer as a donor or as an individual who has refused to make an
anatomical gift:
(1) A law-enforcement officer, fireman, paramedic or other
emergency rescuer finding an individual who the searcher believes
is dead or near death; and
(2) A hospital, upon the admission of an individual at or
near the time of death, if there is not immediately available any
other source of that information.
(d) If a document of gift or evidence of refusal to make an
anatomical gift is located by the search required by subdivision
(1), subsection (c) of this section, and the individual or body
to whom it relates is taken to a hospital, the hospital must be
notified of the contents and the document or other evidence must
be sent to the hospital.
(e) If, at or near the time of death of a patient, a
hospital knows that an anatomical gift has been made pursuant to
subsection (a), section three of this article or a release and
removal of a part has been permitted pursuant to section four, or
that a patient or an individual identified as in transit to the hospital is a donor, the hospital shall notify the donee if one
is named and known to the hospital; if not, it shall notify an
appropriate procurement organization. The hospital shall
cooperate in the implementation of the anatomical gift or release
and removal of a part.
(f) A person who fails to discharge the duties imposed by
this section is not subject to criminal or civil liability but is
subject to appropriate administrative sanctions.
§16-19-6. Persons who may become donees; purposes for which
anatomical gifts may be made.
(a) The following persons may become donees of anatomical
gifts for the purposes stated:
(1) A hospital, physician, surgeon or procurement
organization, for transplantation, therapy, medical or dental
education, research or advancement of medical or dental science;
(2) An accredited medical or dental school, college or
university for education, research, advancement of medical or
dental science; or
(3) A designated individual for transplantation or therapy
needed by that individual.
(b) An anatomical gift may be made to a designated donee or
without designating a donee. If a donee is not designated or if
the donee is not available or rejects the anatomical gift, the
anatomical gift may be accepted by any hospital.
(c) If the donee knows of the decedent's refusal or contrary
indications to make an anatomical gift or that an anatomical gift
by a member of a class having priority to act is opposed by a
member of the same class or a prior class under subsection (a),
section three of this article the donee may not accept the
anatomical gift.
§16-19-7. Delivery of document of gift.
(a) Delivery of a document of gift during the donor's
lifetime is not required for the validity of an anatomical gift.
(b) If an anatomical gift is made to a designated donee, the
document of gift, or a copy, may be delivered to the donee to
expedite the appropriate procedures after death. The document of
gift, or a copy, may be deposited in any hospital, procurement
organization, or registry office that accepts it for safekeeping
or for facilitation of procedures after death. On request of an
interested person, upon or after the donor's death, the person in
possession shall allow the interested person to examine or copy
the document of gift.
§16-19-8. Rights and duties at death.
(a) Rights of a donee created by an anatomical gift are
superior to rights of others except with respect to autopsies
under subsection (b), section eleven of this article. A donee
may accept or reject an anatomical gift. If a donee accepts an
anatomical gift of an entire body, the donee, subject to the terms of the gift, may allow embalming and use of the body in
funeral services. If the gift is of a part of a body, the donee,
upon the death of the donor and before embalming, shall cause the
part to be removed without unnecessary mutilation. After removal
of the part, custody of the remainder of the body vests in the
person under obligation to dispose of the body.
(b) The time of death must be determined by a physician or
surgeon who attends the donor at death or, if none, the physician
or surgeon who certifies the death. Neither the physician or
surgeon who attends the donor at death nor the physician or
surgeon who determines the time of death may participate in the
procedures for removing or transplanting a part unless the
document of gift designates a particular physician or surgeon
pursuant to subsection (d), section two of this article.
(c) If there has been an anatomical gift, a technician may
remove any donated parts and an enucleator may remove any donated
eyes or parts of eyes, after determination of death by a
physician or surgeon.
§16-19-9. 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.
§16-19-10. Sale or purchase of parts prohibited.
(a) A person may not knowingly, for valuable consideration,
purchase or sell a part for transplantation or therapy, if
removal of the part is intended to occur after the death of the
decedent.
(b) Valuable consideration does not include reasonable
payment for the removal, processing, disposal, preservation,
quality control, storage, transportation or implantation of a
part.
(c) A person who violates this section is guilty of a
felony, and, upon conviction, is subject to a fine of not more
than fifty thousand dollars or imprisonment of not more than five
years, or both.
§16-19-11. Examination, autopsy, liability.
(a) An anatomical gift authorizes any reasonable examination
necessary to assure medical acceptability of the gift for the
purposes intended.
(b) The provisions of this article are subject to the laws
of this state governing autopsies.
(c) A hospital, physician, surgeon, coroner, chief medical
examiner, local public health officer, enucleator, technician or
other person, who acts in accordance with this article 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 that
act in a civil action or criminal proceeding.
(d) An individual who makes an anatomical gift pursuant to
section two or three of this article and the individual's estate
are not liable for any injury or damage that may result from the
making or the use of the anatomical gift.
§16-19-12. Transitional provisions.
This article applies to a document of gift, revocation, or
refusal to make an anatomical gift signed by the donor or a
person authorized to make or object to making an anatomical gift
before or after the effective date of this article.
§16-19-13. Uniformity of application and construction.
This article shall be applied and construed to effectuate
its general purpose to make uniform the law with respect to the
subject of this article among states enacting it.
§16-19-14. Short title.
This article may be cited as the "Uniform Anatomical Gift
Act."
NOTE: The purpose of this bill is to adopt the Uniform
Anatomical Gift Act (1987). The stated purpose is to simplify
the manner of making an anatomical gift and, thereby, increase
the number of such donations. Present law requires formalities
which this bill would eliminate. Under this bill, a document of
gift is effective upon signature by the donor, notwithstanding
the presence of witnesses. Volunteer donations would also be
encouraged through a required request provision whereby
physicians and hospital personnel must inquire if a patient has
considered making an anatomical gift. Organ donation would also
be discussed with next of kin at or near the time of death if no
known document of gift or refusal to make a gift were in
existence. Coroners and medical examiners would be allowed to remove organs from decedents, but only where a specific request
has been made and it is found that there is no known objection
from family members or indication of objection on the part of the
decedent. The bill provides for the execution of a document
whereby a person may forbid the taking of all or specified
organs, or that restricts the gift to certain donees or restricts
the purposes for which the gift may be used.
This article has been rewritten; therefore, strike-throughs
and underscoring have been omitted.
This bill has been recommended for introduction by the
Commission on Interstate Cooperation at this session.
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