PA 10-123—SB 250

Public Health Committee

Judiciary Committee

AN ACT CONCERNING ANATOMICAL GIFTS

SUMMARY: This act replaces the 1987 Uniform Anatomical Gift Act with its 2007 successor. The act retains many provisions of the existing law, updates others, and introduces new provisions on organ and tissue procurement organizations and the role of the chief medical examiner.

The act allows some minors, parents of any minor, and a donor's legally authorized agent to make anatomical gifts during a person's lifetime. It permits more people to make donations after a person dies and reorders the priority for their doing so. It makes it more difficult for others to override a donor's anatomical gift and creates rules for interpreting gift documents that lack specificity.

The act establishes standards for donor registries and requires cooperation between procurement organizations and the Office of the Chief Medical Examiner.

It recognizes gifts made under the laws of other jurisdictions and allows for electronic records and signatures.

EFFECTIVE DATE: October 1, 2010

WHO MAY MAKE AN ANATOMICAL GIFT

4 — During the Donor's Lifetime

The law allows an adult (someone age 18 or older) to donate all or part of his or her body for transplant, therapy, education, or research. The act permits minors to make such donations under certain conditions and parents to do so on behalf of an unemancipated minor. A minor can make a gift if he or she is emancipated or old enough to apply for an operator's license (age 16) or a Department of Motor Vehicles (DMV) identification card (there is no minimum age to apply for such cards).

The act also allows a donor's guardian or “agent” to make a gift on the donor's behalf. The act defines an “agent” as someone authorized through a power of attorney to make health care decisions for the donor or who the donor expressly authorizes to make an anatomical gift. The agent can make a donation unless the health care power of attorney or other document conferring agency prohibits this.

The act eliminates a donor's ability to designate a particular doctor to carry out the medical procedures for donation.

9 — Upon a Donor's Death

The law permits other people to make anatomical gifts when a person dies, unless the person had previously refused to donate. It sets a priority order among these people for decision-making. Under prior law, they were, in priority order, the decedent's: (1) spouse, (2) designated decision-making agent (under CGS 1-56r), (3) adult child, (4) parents, (5) adult siblings, (6) grandparents, (7) guardian of the person, (8) legally authorized health care agent, and (9) conservator.

The act reorders this list and adds new people. It gives the donor's agent top priority. It gives the decedent's adult grandchildren priority over the decedent's grandparents and an adult who exhibited special care and concern for the decedent priority over conservators. It adds guardians at the same priority level as conservators and, at lowest priority, adds anyone authorized to dispose of the decedent's body.

The act appears to make it easier for these people to make decisions by allowing them to be “reasonably” available, not just available. It defines “reasonably available” as able to be contacted by a procurement organization and willing and able to act in a timely way consistent with medical criteria for making anatomical gifts.

By law, a person in this priority list cannot make a gift if someone in a higher class is available to make the decision or he or she knows that (1) the decedent refused to make a donation or (2) someone in the same or a higher class opposes donation. The act eliminates the specific bar on post-mortem donations by someone who knows the decedent refused to donate. Instead, it bars anyone, other than the parents of a deceased minor, from making a donation if the donor refused in writing to donate and did not revoke this refusal or expressly indicate otherwise.

Under the act, any member of a class that contains more than one member can make a donation, unless he or she or a potential recipient of the gift knows that someone else in the class objects. In that case, a majority of reasonably available class members must make the decision to donate.

HOW ANATOMICAL GIFTS CAN BE MADE

5 — By a Donor

Under existing law, a donor may make an anatomical gift (1) in a will or other document, (2) by signing an organ or tissue donor card, (3) by being included in a donor registry maintained by an organ or tissue procurement organization, or (4) by indicating the intent to donate on an operator's license or license application or renewal. These are known as “documents of gift. ” The act allows a person to donate during a terminal illness or injury by communicating this intention in any way to at least two adults, at least one of whom must be a disinterested witness.

In order to donate through a registry, the act requires a donor or the donor's agent to sign a donor card or other record indicating the donor's intent to be included on a registry. By law, if a donor cannot sign a document of gift, another person and two witnesses can do so at the donor's direction and in the presence of all the parties. The act specifies that this is necessary only when the donor is physically unable to sign.

The act specifies that revocation, suspension, expiration, or cancellation of a DMV operator's license or identification card does not invalidate an anatomical gift.

It eliminates the requirement that a donor registry be operated by a procurement organization. Under the act, a donor registry is either the DMV registry process or any other database that identifies donors and conforms to the act's requirements for donor registries (see below).

10 — By a Third Party after the Donor's Death

The act does not change the way third parties can make a gift after a donor dies—by document of gift or a recorded message reduced to writing and signed by the recipient.

6, 8, & 10 — AMENDING OR REVOKING A GIFT

During a Donor's Lifetime

The act permits more people to amend or revoke a donor's gift but makes it more difficult for a dying donor to do so. Under existing law, a donor can amend or revoke a gift that is not made in a will by (1) signing a statement, (2) delivering a signed statement to a procurement organization or a donee named in a document of gift, or (3) communicating with a doctor during a terminal illness or injury.

The act permits a donor's authorized agent, or, if the donor or agent are physically unable to sign, another party acting at their direction, to sign a document amending or revoking a gift. A document signed by someone other than the donor or agent must be witnessed by at least two adults, one of whom is a disinterested witness, who have signed at the donor's or third party's request. The act defines a “disinterested witness” as someone not (1) related to the person making, amending, revoking, or refusing to make a gift, including those people able to make post-mortem gifts or (2) able to receive an anatomical gift.

The act requires a dying donor who wants to amend or revoke a gift to communicate this intention to at least two adults, one of whom must be a disinterested witness.

Under existing law and the act, unless a person formally refuses to donate, a donor's revoking or amending a gift does not constitute a refusal. The act specifies that a donor's or other authorized person's revocation of a gift does not bar anyone authorized to make a gift from doing so either before or after the donor's death. Under the act, anyone authorized to make a gift during the donor's lifetime can amend or revoke a gift by destroying or cancelling the document of gift or that part of the document that conveys the gift.

Under the act, absent express indications to the contrary, giving a body part for a specific purpose does not bar giving it for other purposes. Under existing law and the act, giving one body part is not deemed to be a refusal to give other parts or limit future donations of other parts, unless the donor or other authorized person expressly indicates otherwise.

Post-Mortem

Under prior law, an unrevoked anatomical gift was irrevocable and did not need anyone's consent to be effective after the donor died. The act, with two exceptions, explicitly bars anyone other than the donor from making, amending, or revoking a donor's gift without some express indication that the donor wanted to change his or her decision. The exceptions permit a parent of an unemancipated minor to (1) revoke the child's signed refusal to make a donation or (2) amend or revoke the child's gift. The act also specifies that if someone other than the donor made or amended a gift during the donor's lifetime, no one can make, amend, or revoke the gift after the donor dies.

The act makes it more difficult to amend or revoke a gift made after a person dies. Under prior law, someone in the same or higher class as the person who made the gift could revoke it if the person removing the parts knew about the revocation. Under the act, only someone in a class above the person who made the gift can revoke or amend it. If more than one member of this higher class is reasonably available, a majority must agree to amend, while a majority or equal division can revoke.

7 — REFUSING TO MAKE A GIFT

By law, a person can refuse to make an anatomical gift in a will or by signing a written document. By law, a dying person can also refuse by communicating his or her refusal to a doctor, orally or in writing. The act requires a dying person to communicate this refusal to at least two people, one of whom must be a disinterested witness. It allows a third party to sign a refusal document at the direction of someone who is physically unable to sign. In this situation, at least two adults, one disinterested, must witness the signing.

The act permits someone to amend or revoke his or her refusal by (1) changing a will; (2) signing a written document; (3) communicating at death with two or more adults, as above; (4) making a document of gift that is inconsistent with the refusal; or (5) destroying the refusal.

The act specifies that, in the absence of express evidence to the contrary, a person's unrevoked refusal bars anyone from making a gift of his or her body or parts, except for the parents of an unemancipated minor.

11 — WHO CAN RECEIVE AN ANATOMICAL GIFT

The act appears to permit private and public corporations, other commercial and legal entities, and government organizations (all “persons” under the act), as appropriate, to receive anatomical gifts for research or education. It specifically permits donations to eye and tissue banks. And, as under existing law, it permits donations to hospitals, medical and dental schools, colleges and universities, organ procurement organizations, and individuals designated by the person making the gift, if the individual is the recipient of the body part.

As under existing law, no one who knows that the decedent refused to make an anatomical gift can accept one. The act specifies that anyone who knew that a donation was made through a document of gift is deemed to know of any refusal, amendment, or revocation made in the same document.

If an organ donation is made for transplant or therapy, but does not name an individual to receive it, the act requires the organ to go to an organ procurement organization, which acts as the organ's custodian.

The act requires eye banks, tissue banks, or organ procurement organizations, as appropriate, to receive body parts in four situations:

1. a donated part cannot be transplanted into a designated donee, and the person making the gift did not direct some other use;

2. a gift identifies a purpose for using donated body parts but does not name a person to receive them (if the gift document lists more than one purpose without setting priorities, the gift must be used first for transplant or therapy and then for research or education);

3. a gift of one or more specific parts neither names a person to receive them or a purpose for their use, in which case the receiving organization must use them first for transplant or therapy, or if they are not suitable for these purposes, for research or education; and

4. a document of gift specifies only a general intent to donate, in which case the parts must be used as in #3.

Under the act, custody of any anatomical gift that does not pass as described above or that is not used for any purpose permitted under the act passes to the person who must dispose of the body.

Finally, the act specifies that, except for donations to named individuals, these provisions do not affect organ allocations for transplant or therapy, which is done pursuant to the National Organ Transplant Act.

12 & 13 — LOOKING FOR AND EXAMINING A DOCUMENT OF GIFT

The law requires various people to look for documents indicating that a dead person or one near death is either an organ donor or has refused to donate. These include (1) paramedics, police, and firefighters and (2) hospital personnel, if no other source of information is immediately available. The act removes procurement organizations from this list. It specifies that the officer or paramedic responsible for conducting the search must send any document he or she finds to the hospital.

Existing law requires anyone who possesses a document of gift to make it available to an “interested party” (presumably a donee or someone who could make a gift) for examination or copying. The act extends this requirement to anyone who possesses a donor's refusal and specifies that donees and parties authorized to make gifts must be given access to the document.

The act removes a requirement that a hospital notify any designated donee it knows of or a procurement organization if it learns a donor is in transit to the hospital, is dying or has died, or that the chief medical examiner has removed an organ or tissue as part of a medicolegal exam.

The act retains the law that specifies that a document of gift does not have to be delivered during a person's lifetime for it to be effective.

14 & 15 — REFERRAL TO A PROCUREMENT ORGANIZATION

The act requires each hospital in the state to enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.

Under the act, when a hospital refers a person near or at death to a procurement organization, the organization must search the DMV registry and any other geographically relevant donor registries to find out whether the person has made an anatomical gift. It requires DMV to give these organizations reasonable access to its donor records. Under the act, procurement organizations include organ, tissue, and eye banks.

Similarly, when a hospital refers a person to a procurement organization, the act requires the organization to look for people with priority to make a post-mortem gift. If an organization learns that a gift to anyone else was made, amended, or revoked, it must advise this person of all relevant information.

When a minor dies, the act requires an organization to look for the parents, unless it knows the minor was emancipated, and give them the chance to amend any donation or revoke a refusal.

Current law requires anatomical gifts to authorize any reasonable examination needed to assure that the gift is medically acceptable for the purposes for which the gift is made. It allows procurement organizations to review a potential donor's medical record to assess his or her suitability to donate.

The act allows procurement organizations to examine an individual to assess the medical suitability of a part that is, or could be, donated for any eligible purpose. During this examination, any measures needed to maintain a part's suitability cannot be withdrawn unless the person says they can. After the person dies, the act permits the donee to conduct a similar examination. People conducting either of these exams can also look at the person's medical and dental records (under federal law, someone would have to consent to this).

The act eliminates (1) the requirement for hospital personnel to discuss the option of donation with any patient who is near death, if there is no record that the patient has made or refused to make a gift and (2) criteria for determining death.

2, 20 — DONOR REGISTRIES

The act defines a donor registry as the DMV registry or any other database that identifies donors. It eliminates the current requirement that a procurement organization maintain a registry.

The act requires all registries to be accessible to procurement organizations 24 hours a day, seven days a week. It specifies that it does not require DMV to provide access to data it maintains in its registry in any way that is inconsistent with existing law. It prohibits the use or disclosure of personally identifiable information on a registry without the consent of the donor or the person who made the gift except to determine if a donor or prospective donor (but apparently not a third party) made a gift.

The act specifies that it does not preclude anyone from creating or keeping a registry without a state contract to do so. But such a registry must comply with the above provisions.

21 — CHIEF MEDICAL EXAMINER (CME)

Existing law requires the CME to facilitate tissue harvesting and organ procurement within the constraints of the office's official investigative responsibilities. The act requires the CME to cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for eligible purposes, subject to existing law governing the operations of the office.

16 — SELLING BODY PARTS

By law, it is a class A misdemeanor (see Table on Penalties) to knowingly sell, receive, or transfer for valuable consideration any human organ for transplant. The act specifies that this prohibition applies only if the body part is supposed to be removed after a person dies. The act also applies to body parts intended to be used for therapy.

The act does not define “valuable consideration. ” Existing law's definition of “valuable consideration” excludes (1) ordinary medical and hospital fees for services, (2) a donee's medical and legal fees, and (3) a donor's travel and housing expenses and lost wages. The act permits people to charge reasonable amounts to remove, process, preserve, control quality, store, transport, implant, and dispose of a body part.

17, 18, & 19 — LIABILITY AND VALIDITY

Under the act, anyone who, for financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation, or a refusal is guilty of a class A misdemeanor.

The law protects people from civil or criminal liability if they act in good faith to comply with Connecticut's or another state's anatomical donation laws. The act also protects them from liability in administrative proceedings.

The act specifies that, in determining whether an anatomical gift has been made, amended, or revoked, a person can rely on representations of relationship by people who can make post-mortem donation decisions, unless the person knows the representation is false.

Under the act:

1. a document of gift is valid if it is executed according to (a) the act, (b) the laws of the jurisdiction in which it was executed, or (c) the laws of the jurisdiction where the person making the gift was domiciled, resided, or a national, when the gift was made;

2. if a gift is valid, Connecticut law governs its interpretation; and

3. people can presume a gift or an amendment is valid unless they know it was not properly executed or was revoked.

22 — CONSTRUING THE BILL

The act specifies that anyone applying and construing it must consider the need to promote uniformity among the states that enact the uniform act.

23 — ELECTRONIC RECORDS AND SIGNATURES

The act addresses the use of electronic records and signatures. It states that it modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act. This federal law facilitates the use of electronic records and signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into electronically. But the act does not affect that act's consumer disclosure provisions or authorize electronic delivery of any notices that the act exempts from electronic transmission.

24 — DMV DONOR REGISTRY

The act makes conforming changes in the law permitting people applying for an operator's license or identity card to make donations through DMV. It allows the donor symbol to be imprinted on the person's operator's license or identity card.

REPEALED PROVISIONS

The act repeals all provisions of the prior Uniform Anatomical Gifts Act but reenacts many of them in the same or slightly altered form. But, in addition to provisions discussed in the context above, it totally repeals provisions that:

1. permit a document of gift to designate a particular doctor to perform the appropriate procedures or, if no designation is made or the doctor is not available, the donee to do so;

2. permit storing a document of gift in a hospital, procurement organization, or donor registry as a way to keep it safe or facilitate procedures after death;

3. require the public health commissioner to adopt implementing regulations; and

4. require a medical examiner to remove corneal or pituitary tissue from any body being autopsied if (a) the examiner believes they may help someone and that removal will not disfigure the body and (b) no next of kin is known at the time or the deceased did not belong to a religious group that objects to tissue removal.

BACKGROUND

DMV Donor Registry

The law requires the DMV commissioner and the Department of Information Technology's chief information officer to enter into an agreement to provide one or more federally designated organ and tissue procurement organizations with access to names, birthdates, and other relevant information of operator license holders who have registered their intent to be organ donors with DMV. The departments determine the form and manner of such access in consultation with the procurement organization. This can include electronic transmission of initial information and periodic updates.

DMV can disclose personal information from a motor vehicle record to any individual, organization, or entity using it for inclusion of personal information about people who have consented to become organ and tissue donors in a donor registry established by a procurement organization. The individual, organization, or entity must sign and file with DMV a statement on a DMV-approved form, under penalty for false statement, that the information will be used as stated. DMV can require supporting documentation or information (CGS 14-42a).

OLR Tracking: JK: JR: PF: DF