Senate Bill No. 393
(By Senators Holliday, Plymale, and Walker)
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[Introduced March 17, 1993; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections one and two, article
nineteen, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto a new section,
designated section one-a, all relating to defining organ
procurement organization; setting forth legislative intent
and findings; establishing paramount rights of donee to
anatomical gifts unnecessary for successful completion of
autopsy; for chief medical examiner's presence during
anatomical gift removal; for photographing or video taping
of gift removal; for physician or other qualified personnel
performing gift removal to create a report detailing
conditions of gifts; and providing for immediate judicial
resolution of disputes arising between chief medical
examiner or child welfare officer and organ procurement
organization.
Be it enacted by the Legislature of West Virginia:
That sections one and two, article nineteen, chapter sixteen
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted; amd that said article
be further amended by adding thereto a new section, designated
section one-a, all to read as follows:
ARTICLE 19. UNIFORM ANATOMICAL GIFT ACT.
§16-19-1. Definitions.
(a) "Bank or storage facility" means a facility licensed,
accredited, or approved under the laws of any state for storage
or distribution of human bodies or parts thereof.
(b) "Certification of death" means a written pronouncement
of death by the attending physician. Such certification shall be
required before the attending physician shall allow removal of
any bodily organs of the decedent for transplant purposes.
(c) "Death" means that a person will be considered dead if
in the announced opinion of the attending physician, made in
accordance with reasonable medical standards, the patient has
sustained irreversible cessation of all functioning of the brain.
(d) "Decedent" means a deceased individual and includes a
stillborn infant or fetus.
(e) "Donor" means an individual who makes a gift of all or
part of his body.
(f) "Hospital" means a hospital licensed, accredited, or
approved under the laws of any state; includes a hospital
operated by the United States government, a state, or a
subdivision thereof, although not required to be licensed understate laws.
(g) "Organ procurement organization" means a nonprofit
organization that performs or coordinates the performance of
retrieving, preserving and transporting organs and tissues and
maintains a system of locating prospective recipients for
available organs and tissues.
(g) (h) "Part" means organs, tissues, eyes, bones, arteries,
blood, other fluids, bone marrow and any other portions of a
human body.
(h) (i) "Person" means an individual, corporation,
government or governmental subdivision or agency, business trust,
estate trust, partnership or association, or any other legal
entity.
(i) (j) "Physician: or "surgeon" means a physician or
surgeon licensed or authorized to practice under the laws of any
state.
(j) (k) "State" includes any state, district, commonwealth,
territory, insular possession, and any other area subject to the
legislative authority of the United States of America.
§16-19-1a. Legislative intent and findings.
The Legislature of West Virginia finds that the availability
of organ and tissue donation can potentially save the lives and
restore the health, vitality and productivity of many West
Virginians. The Legislature is also acutely aware of the severe
shortage of organs and tissues needed for transplantations both
state-wide and nationally. Likewise, the Legislature understandsthat time is of the essence in assuring swift and efficient
removal and successful transplantation of donated organs and
tissues. Thus, inasmuch as it is in the public interest to aid
medical developments in the fields of tissue and organ
preservation and transplantation, it is the intent of the
Legislature in enacting this article to encourage and facilitate
the medical advancements being achieved in these fields. While
the Legislature is also aware of the public interest and
potential evidentiary value of autopsies in determining the
manner, time and cause of a decedent's death, the Legislature
recognizes that, short of precluding removal of any organs and
tissues from a decedent's body prior to completion of an autopsy,
other safeguards exist and must be utilized which assure
successful completion of autopsies while providing for removal of
invaluable anatomical gifts in a timely fashion.
§16-19-2. Persons who may execute an anatomical gift.
(a) Any individual of sound mind and eighteen years of age
or more may give all or any part of his body for any purpose
specified in section three of this article, the gift to take
effect upon certification of death.
(b) Any of the following persons, in order of priority
stated, when persons in prior classes are not available at the
time of certification of death, and in the absence of actual
notice of contrary indications by the decedent or actual notice
of opposition by a member of the same or a prior class, may give
all or any part of the decedent's body for any purpose specifiedin section three article nineteen chapter sixteen of this
article:
(1) The spouse;
(2) An adult son or daughter;
(3) Either parent;
(4) An adult brother or sister;
(5) A guardian of the person of the decedent at the time of
the certification of his death;
(6) Any other person authorized or under obligation to
dispose of the body.
(c) If the donee has actual notice of contrary indications
by the decedent or that a gift by a member of a class is opposed
by a member of the same or a prior class, the donee shall not
accept the gift. The persons authorized by subsection (b) of
this section may make the gift after or immediately before
certification of death.
(d) A gift of all or part of a body authorizes any
examination necessary to assure medical acceptability of the gift
for the purposes intended.
(e) The rights of the donee created by the gift are
paramount to the rights of all others except that if it is
necessary under section ten, article twelve, chapter sixty-one of
this code that an autopsy be performed, the chief medical
examiner or medical examiner of the county in which the
decedent's body was found or some other representative thereof,
including personnel within the state Child Welfare Agency, shallhave paramount rights to only such parts of the decedent's body
as are necessary for successful completion of the autopsy or for
evidence. Notwithstanding any other provision of this code,
neither the chief medical examiner nor any representative thereof
shall have the authority to obstruct or otherwise prohibit a
donee from receiving any anatomical gift which is unnecessary for
successful completion of the autopsy or for evidence. as
provided by section seven, subsection (d) of this article
(f) Upon the request of an authorized official of an organ
procurement organization, as defined by subsection (g), section
one of this article, the chief medical examiner or a
representative thereof shall permit a physician or other
qualified personnel to remove any and all anatomical gifts which
lie outside the scope of all injured regions of the decedent's
body and which are not necessary for the determination of the
manner, time, or cause of the decedent's death, prior to an
autopsy being performed, when removal of such anatomical gifts
will not unnecessarily interfere with the autopsy.
(1) In such instance, the chief medical examiner or some
representative thereof is permitted to be present during the
removal of the anatomical gifts in order to assure that the
physician recovers the gifts in a manner which best preserves the
decedent's body for successful completion of an autopsy:
Provided, That such person's presence can be accomplished within
a time period compatible with the preservation of the anatomical
gifts for transplantation purposes;
(2) In any event, the Organ Procurement Organization shall
arrange for and assure the photographing and\or video taping of
the removal of the anatomical gifts at the request of the chief
medical examiner or some representative thereof, to be used for
evidentiary purposes;
(3) The physician or other qualified personnel performing
the removal of such anatomical gifts shall file with the chief
medical examiner or some representative thereof a report, which
may be incorporated into the medical examiner's report, detailing
the condition of the anatomical gifts removed.
(g) If a dispute arises between an authorized official of an
organ procurement organization and the chief medical examiner or
some representative thereof, including personnel of the state
Child Welfare Agency, as to whether the recovery of an anatomical
gift will interfere with the medical examiner's investigation,
they shall by telephone have the dispute resolved by a circuit
judge of the circuit in which the decedent's body was found or by
any other circuit judge of the state if the circuit judge for the
circuit in which the decedent's body was found is unavailable,
who shall render an instant decision. Given that the lives of
donees can be saved or materially improved by the receipt of
anatomical gifts, there shall be a preference for the gift, which
the chief medical examiner or some representative thereof,
including personnel of the state Child Welfare Agency, can
overcome only by a preponderance of the evidence showing that the
refusal of the anatomical gift is essential to the medicalexaminer's determination of the manner, time, or cause of the
decedent's death.
NOTE: The purpose of this bill is to regulate and establish
guidelines for the removal of organs prior to autopsy which are
to be anatomical gifts. This bill also provides that the removal
of anatomical gifts will not unnecessarily interfere with the
autopsy.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§16-19-1a is new; therefore, strike-throughs and
underscoring have been omitted.