36-841. Definitions
In this article, unless the context otherwise requires:
1. "Anatomical gift" means a donation of all or part of a human body to take effect on or after death.
2. "Decedent" means a deceased person and includes a stillborn infant.
3. "Document of gift" means a card, a will or any other writing used to make an anatomical gift.
4. "Donor" means a person who makes an anatomical gift of all or part of the person's body.
5. "Hospital" means a facility licensed, accredited or approved as a hospital under the laws of any state or a facility operated as a hospital by the united states government, a state or a political subdivision of a state.
6. "Organ procurement agency" means any organ, tissue or eye bank or storage facility that is licensed, accredited or approved under the laws of any state for the storage of human bodies or parts.
7. "Organ procurement organization" means an organization located within this state that meets the requirements of section 371 of the public health service act (42 United States Code section 273).
8. "Part" means any organ, tissue, eye, bone, artery, blood, fluid or other portion of a human body.
9. "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.
10. "Physician" or "surgeon" means a person who is licensed or authorized to practice allopathic or osteopathic medicine or surgery under the laws of any state.
11. "State" means a state, territory or possession of the United States and includes the District of Columbia and the Commonwealth of Puerto Rico.
12. "Trained technician" means a person certified by an organ procurement agency to remove parts.
36-842. Anatomical gifts; execution; amendment; revocation; refusal
A. A person who is at least eighteen years of age may:
1. Make an anatomical gift for any of the purposes stated in section 36-846, subsection A.
2. Limit an anatomical gift to one or more of those purposes.
3. Refuse to make an anatomical gift.
B. A person may make an anatomical gift only by a document of gift signed by the donor. If the donor cannot sign, the document of gift shall be signed by another person and by two witnesses who sign at the direction and in the presence of the donor and of each other and who state in the document that it has been signed in this manner.
C. A person who has executed a document of gift may place a label designated by an organ procurement organization on the person's driver license to notify others of the document of gift. If a document of gift is attached to or imprinted on a donor's driver license, the document of gift shall comply with the requirements of 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, surgeon
or trained technician 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 or trained technician to carry out the appropriate
procedures.
E. An anatomical gift by will takes effect on the testator's death, 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 persons.
3. Any form of communication during a terminal illness or injury that is addressed to a physician or surgeon.
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 orconcurrence of any person after the donor's death.
I. A person may refuse to make an anatomical gift of the person's body or part by:
1. A writing signed in the same manner as a document of gift.
2. A statement attached to or imprinted on a donor's driver license.
3. Any other writing used to identify the person as refusing to make an anatomical gift.
J. During a terminal illness or injury a person may indicate the person's refusal by an oral statement or any other form of communication.
K. 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 36-843 or on a removal or release of other parts under section 36-844.
L. 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.
36-843. Actions by a third person
A. If a person has not executed a document of gift or has not refused to make an anatomical gift, any member of the following classes of persons, in the order of priority stated, may make an anatomical gift of all or a part of the decedent's body for any of the purposes prescribed by section 36-846:
1. The agent designated in the decedent's health care power of attorney.
2. The decedent's court appointed guardian.
3. The decedent's spouse, unless the decedent and spouse were legally separated.
4. An adult child of the decedent. If the decedent has more than one adult child the hospital or organ procurement agency shall seek the consent of a majority of the adult children who are reasonably available for consultation. For the purposes of subsection B or D of this section and section 36-846, subsection C, the objection of one or more of a minority of adult children to the making of an anatomical gift does not invalidate the gift.
5. A parent of the decedent.
6. If the decedent is unmarried, the decedent's domestic partner if another person has not assumed financial responsibility for the patient.
7. An adult brother or sister of the decedent.
8. A close friend of the decedent. For the purposes of this paragraph, "close friend" means an adult who exhibited special care and concern for the decedent and who is willing and able to serve in this capacity.
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 by the decedent made pursuant to section 36-842.
3. The person proposing to make an anatomical gift knows of an objection to the making of an anatomical gift by a member of the person's class or a prior class.
C. A person listed in subsection A of this section shall give or refuse consent to an anatomical gift by either:
1. Signing a document of consent or refusal to consent.
2. The person's telegraphic, recorded telephonic or other recorded message, or other form of communication from the person that is contemporaneously reduced to writing.
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 or trained technician removing the part is notified of the revocation.
E. A failure to make an anatomical gift under subsection A of this section is not an objection to the making of an anatomical gift or a refusal by that person to make that person's own anatomical gift.
36-844. County medical examiners; authorization
A. The medical examiner may release and permit the removal of a part from a body within that official's custody for transplantation, therapy or research if:
1. The examiner has received a request for the part from a hospital, physician, surgeon or organ procurement agency.
2. The examiner or organ procurement agency has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records and, if the decedent has not executed a document of gift or has not refused to make an anatomical gift, inform persons listed in section 36-843, subsection A of the person's option to make or object to making an anatomical gift.
3. The official does not know of a refusal by the decedent or an objection by a person having priority to act as listed in section 36-843, subsection A.
4. The removal will be by a physician, surgeon or trained technician.
5. The removal will not interfere with any autopsy or investigation.
6. The removal will be in accordance with accepted medical standards.
7. Cosmetic restoration will be done, if appropriate.
B. If the body is not within the custody of the medical examiner, the county health officer may release and permit the removal of any part from the body in the county health officer's custody for transplantation, therapy or research if the requirements of subsection A of this section are met.
C. An official who releases and permits 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.
36-845. Hospitals; required request; search and notification; immunity
A. The person in charge of a hospital or the person's designee shall establish an organ and tissue procurement for transplant protocol that includes the notification of an appropriate organ procurement agency, that designates hospital or organ procurement agency personnel who may obtain consent to donate an anatomical gift pursuant to subsection B of this section and that requires specified training for the personnel who request consent. An organ procurement agency shall provide this training.
B. If at or near the time of death there is no medical record that the decedent has executed a document of gift or refused to make an anatomical gift, the hospital administrator or the administrator's designee shall make reasonable efforts to:
1. Discuss the option to make or refuse to make an anatomical gift with the appropriate persons listed in section 36-843, subsection A.
2. Obtain the written consent or written refusal to make an anatomical gift from the appropriate persons listed in section 36-843, subsection A.
3. Request the making of an anatomical gift pursuant to section 36-843. If the request is made by a representative of an organ procurement agency that person shall make reasonable efforts to first consult the administrator of the hospital or the administrator's designee to ensure that the request is made with reasonable discretion and sensitivity to the circumstances of the appropriate surrogate decision maker.
C. An entry shall be made in the medical record of the patient stating the name and affiliation of the person who made the request and the name, response and relationship to the patient of the person to whom the request was made.
D. Information concerning organ or tissue donation solicited by the hospital at the time of hospital admission does not fulfill a hospital's obligation to request an anatomical gift under this section.
E. A hospital, person or entity is not subject to civil damages or legal action as a consequence of good faith acts or omissions related to procurement of parts in compliance with this article. All acts and omissions are presumed to be in good faith unless the acts or omissions are done with intent to maliciously cause injury.
F. A consent to donate an anatomical gift constitutes a limited waiver of a patient's confidentiality provided by sections 12-2235 and 12-2292 to the extent that the appropriate organ procurement agency may have access to and may obtain a copy of all or any portion of a medical record necessary to determine whether a person is a suitable organ or tissue donor. A hospital shall release copies of the decedent's medical records to an organ procurement agency on request and may charge the organ procurement agency reasonable copying charges. An organ procurement agency shall keep the records confidential and privileged to the same extent as required of the hospital from which they are obtained.
36-846. Eligible donees; purposes for which anatomical gifts may be made; reciprocal agreements; definitions
A. The following may become donees of anatomical gifts for the purposes stated:
1. A hospital, physician, surgeon or organ procurement agency 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 or advancement of medical or dental science.
3. A person designated by the donor for transplantation or for therapy needed by that person.
4. An organ procurement organization.
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 person pursuant to subsection A of this section.
C. If the donee knows of the decedent's refusal 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 section 36-843, the donee shall not accept the anatomical gift.
D. Except as provided in this subsection, a vascular organ obtained by an organ procurement organization designated to service this state must be used in this state. If a suitable potential recipient for a vascular organ is not specified on a waiting list of a hospital in this state, the organ procurement organization shall do one of the following:
1. Offer the vascular organ to an organ procurement organization for which the designated service area is primarily outside this state if the organ procurement organization in this state has entered into a reciprocal agreement with that organization. The organ procurement organization in this state may enter into a reciprocal agreement only if it determines that doing so is in the best interest of persons who are on waiting lists in this state for transplanted vascular organs and will increase the number of people who receive these transplants.
2. Offer the vascular organ for use by an entity that distributes vascular organs on a regional or national basis under a contract with the United States department of health and human services or a subcontract with a contractor with that agency.
E. For the purposes of this section:
1. "Reciprocal agreement" means an agreement to return to the recipient pool in this state an organ that is deemed locally acceptable for transplantation.
2. "Vascular organ" means the heart, lungs, kidneys, liver and pancreas and any other organ that requires continuous circulation of blood to remain useful for transplantation purposes. Vascular organ does not include human tissue, bones or corneas.
36-847. Delivery of document of gift
A. The 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 or organ procurement agency that accepts it for safekeeping
or for facilitation of procedures after death. On request of an interested
person, on or after the donor's death, the person in possession
shall allow the interested person to examine or copy the document of gift.
36-848. 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 section 11-594, subsection C, paragraph 3. 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, on 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 shall be determined by a physician or surgeon who attends the donor at death or, if none, the physician or surgeon who certifies the death. The physician or surgeon who attends the donor at death or the physician or surgeon who determines the time of death shall not participate in the procedures for removing or transplanting a part unless the document of gift designates a particular physician or surgeon pursuant to section 36-842, subsection D.
C. If there has been an anatomical gift, a physician, a surgeon or a trained technician may remove any donated parts after the determination of death by a physician or surgeon. The institution where the removal of any donated parts occurs shall notify the funeral director or the person acting in that capacity who first assumes custody of the body about the removal of the body parts.
36-849. Sale or purchase of parts; prohibition; violation; classification
A. A person shall 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 class 3 felony.
36-850. Examination; autopsy; liability
A. An anatomical gift authorizes any reasonable examination procedure or test necessary to assure medical acceptability of the gift for the purposes intended.
B. This article is subject to the laws of this state governing autopsies.
C. Any hospital, physician, surgeon, medical examiner, trained technician or other person who acts in accordance with this article or with the applicable anatomical gift law of another state or who attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding.
D. A person who makes an anatomical gift pursuant to section 36-842 or 36-843 and that person's estate are not liable for any injury or damage that may result from the making or the use of the anatomical gift.
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Revised Uniform Anatomical Gift Act Donation
