The Legal Aspects of Organ and Tissue Donation

Lawyers are often called on to do estate planning with clients. Estate planning usually includes the preparation of Last Wills and Testaments, Powers of Attorney and Advance Directives for Health Care Declarations (Living Wills). It may also involve a discussion and preparation of a plan for paying for long term care, including the consideration of long term care insurance. The estate planning meeting should also include a discussion about the possibility of organ and tissue donation. It is the job of an attorney to get a client to think about many issues that they may not otherwise address, whether this issue is who will be guardian of a minor or a special needs child, who will inherit particular property, what charitable gifting the client wants to arrange, who will handle the client's affairs if the client becomes incapacitated, how the client will be able to afford nursing home care without using all of his or her assets, what medical care the client wants if he or she is terminally ill or in a coma or what will be done with the client's organs and tissues after the client has died. The lawyer can, by conversations with clients and their families, provide input about all of these important areas.

However, the discussion about organ and tissue donation is often not raised. The lawyer may think the client is too old or the lawyer may not be comfortable talking about this area. It is important to make the effort. Many people die each year or go through painful and expensive medical procedures while waiting for organ donations. If more lawyers raised these issues with their clients, more people might become organ and tissue donors. More donors means more organs being available to save and change more lives. Rule 2.1 of the Rules of Professional Conduct states in part that:

In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

By raising the issue of organ and tissue donation with clients during the estate or long term care planning process and helping clients understand their rights with regard to making provisions for such donations, attorneys can have a large impact on society by helping clients' effectuate their wish to donate, and helping those in need of organs and tissue.

Chapter 86 of Title 20 deals with "Anatomical Gifts" in Pennsylvania and refers to the Uniform Anatomical Gift Act of 1968, which has been adopted by all fifty states in some form. The laws based on the Uniform Anatomical Gift Act are designed to facilitate a relatively uniform donation law throughout the country.

In Pennsylvania, competent individuals over eighteen (18) years of age may authorize the donation of their organs and tissue. It can be as simple as agreeing to be a donor when the client gets a driver's license by having the language "ORGAN DONOR" put on that license. See 75 Pa.C.S.A. Section 1510(c). In fact, the Department of Transportation is required to ask individuals when they are applying for or renewing their licenses, "Do you wish to have the organ donor designation printed on your driver's license?" The designation "ORGAN DONOR" on a driver's license satisfies all of the requirements for consent to organ and tissue donation. 20 Pa.C.S.A. Section 8619.

The authorization for organ and tissue donation can also be done by obtaining an organ donor card from the Center for Organ Recovery & Education (CORE). (Call 1-800-DONORS-7 or go to http://www.core.org/ to get a donor's card.) The card must be signed by the donor in the presence of two (2) witnesses who sign in the presence of the donor. If the donor is unable to sign, it can be signed for the donor by another person as long as the two (2) witnesses requirement is still met.

Section 8611 allows agents under Powers of Attorney to make anatomical gifts. This section also allows minors who are at least 16 and who have consent from their parents or legal guardian to make such a gift. Subsection (b) permits other individuals to make anatomical gifts on behalf of a decedent, provided that the individual did not express a contrary intent. The parties authorized to make anatomical gifts are (in order of priority):

  1. Spouse
  2. An adult brother or sister
  3. Adult son or daughter
  4. A guardian of the person
  5. Either parent
  6. Any other person who has the authority or obligation to dispose of the body

The parties referred to above may agree to the anatomical gift in writing, by a telegram, or by a recorded telephonic or other type of recorded message.

A Last Will and Testament may be used to make an anatomical gift. This gift becomes effective once the testator dies without the need for probate. If the law required that the gift not be made until after a will was probated, it might be too late to use the organs or tissue. And, once the gift is made, it is valid even "if the will is not probated or if it is declared invalid for testamentary purposes".

Language can be placed in a Power of Attorney regarding organs and tissue donation. Section 5602 (23) of Title 20 provides that an agent under a Power of Attorney can be given the power "To make an anatomical gift of all or part of my body." The agent is allowed to "arrange and consent, either before or after the death of the principal, to procedures to make an anatomical gift in accordance with Chapter 86 (relating to anatomical gifts)."

Appropriate wording can be written into an Advance Directive for Health Care Declaration with regard to organ donation as well. Section 5404 (b) of Title 20 permits the person preparing an Advance Directive to make an anatomical gift of all or part of his/her body subject to limitations, if so desired. However, when a client making an Advance Directive is an organ or tissue donor, careful wording may be required to assure that the language in the Advance Directive stating that the maker does not want certain procedures, such as being placed on a respirator, will not prevent the maker from being an organ or tissue donor. Often, a prospective donor may need to be placed on a respirator while waiting for the gift to be made. Specific language, such as stating that the use of certain procedures is acceptable to allow for organ and tissue donation, should be used in the Advance Directive to assure that inconsistencies do not occur.

If a donor card, donor driver's license, living will, durable power of attorney or other document of gift evidencing a gift of organs or tissue has been executed, consent of any person designated in section 8611(b) [the six parties named above] at the time of the donor's death or immediately thereafter is not necessary to render the gift valid and effective.
20 Pa.C.S.A. Section 6813 (e)

The documentation of the anatomical gift does not have to be delivered to anyone to be valid but it is probably a good idea to advise the client to discuss his or her wishes with family members and to deposit a copy of the Last Will and Testament, Power of Attorney, Advance Directive, Organ Donor card or other document with CORE or a similar organization for safekeeping and to facilitate its use after death.

Just like any other estate planning document, a anatomical gift document may be amended or revoked at any time prior to death. The gift may be revoked by destroying, cancelling or mutilating the documents which refer to it. An anatomical gift in a will may be revoked by a later will or codicil. It may be revoked by executing and delivering a written statement to CORE or whatever organization has the document making the gift or by having such a written document on the donor's person or with the donor's effects. Revocation may also be accomplished by an oral statement to the party holding the document made in the presence of two (2) witnesses. If the donor is terminally ill or has a fatal injury, a statement to the attending physician will be sufficient to revoke the anatomical gift document. 20 Pa.C.S.A. Section 8615.

Anatomical gifts may be made to a specific donee. The donee may be a particular hospital, surgeon or physician, medical or dental school, a bank or storage facility, a particular individual or the board. 20 Pa.C.S.A. Section 8612. Gifts are often made for the purposes of transplantation but may also be used for education, research, scientific or dental advancement or therapy. A donor can specify the purposes for which his or her gift of organs or tissue may be used or leave it up to the donee.

Donors of organs and tissue may specify the surgeon or physician he or she wants to carry out the appropriate procedures to safely obtain the gifts. If no one is specified or if the named physician is not available, the party receiving the gift may authorize a surgeon or physician. There are special rules with regard to who may accept the gift of eyes, which rules are found in 20 Pa.C.S.A. Section 8613(d).

Copies of the various statutes and some sample language for Last Wills and Testaments, Powers of Attorney and Advance Directives are attached for easy reference.

APPENDIX

Sample Language for Last Will and Testament, Power of Attorney and Advance Directive for Healthcare Declaration

A. Last Will and Testament

I hereby give, devise and bequeath my organs and tissue for the purposes of organ donation. I hereby direct that this anatomical gift be made to the Center for Organ Recovery and Education through any appropriate hospital, surgeon or physician.

B. Power of Attorney

I authorize my said agent to do any or all of the following in my name and for my benefit

  1. Make an anatomical gift of all or part of my body, or
  2. Make an anatomical gift of all of my organs and tissues, or
  3. Make an anatomical gift of particular organs (List organs which will be donated)

C. Advance Directive for Healthcare Declaration

Statutory language from 20 Pa.C.S.A. Section 5404 (b)

I ( ) do ( ) do not want to make an anatomical gift of all or part of my body, subject to the following limitations, if any:

Other possible language:

I wish to make an anatomical gift of my organs and tissue so that while my Advance Directive indicates that I do not wish to have certain medical procedures in the event that I am terminally ill or in a persistent vegetative state, I do agree to such appropriate medical procedures to insure that my organs and tissue will be usable to satisfy my desire to make said anatomical gift. I agree that I may temporarily be placed on placed on a respirator or breathing machine, that I may be kept hydrated or that other appropriate medical steps to insure the viability of my organs and tissue for donation.