ENROLLED
H. B. 4587
(By Delegates Staton, Johnson, Spencer, Capito,
Amores, Rowe and Smirl)
[Passed March 11, 2000; in effect ninety days from passage.]
AN ACT to amend and reenact article nineteen, chapter sixteen of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to anatomical gifts.
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.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 certification of death.
(2) "Certification of death" means a written pronouncement
of death by the attending physician. Certification is required
before the attending physician may allow removal of any bodily
organs of the decedent for transplant purposes.
(3) "Death" has the meaning provided in section one, article ten, chapter sixteen of this code.
(4) "Decedent" means a deceased individual and includes a
stillborn infant or fetus.
(5) "Designated requester" means an individual employed or
trained by a procurement organization to discuss the option of
donation with families of deceased individuals.
(6) "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.
(7) "Donor" means an individual who makes an anatomical
gift of all or part of his or her body.
(8) "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.
(9) "Part" means an organ, tissue, eye, bone, artery,
blood, fluid or other portion of a human body.
(10) "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.
(11) "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.
(12)"Physician assistant" has the meaning provided in
section sixteen, article three, chapter thirty of this code.
(13) "Procurement organization" or "bank" means a person
licensed, accredited, or approved under the laws of any state or
federal agency for procurement, distribution or storage of human
bodies or parts.
(14) "State" means any state, district, commonwealth,
territory, insular possession and any other area subject to the
legislative authority of the United States of America.
(15) "Technician" means a qualified individual who is
certified or authorized by an accredited procurement organization
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:
(1) Make an anatomical gift for any of the purposes stated
in subsection (a), section six of this article;
(2) limit an anatomical gift to one or more of those
purposes; or
(3) 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 is unable to sign a
document of gift and intends to make an anatomical gift, 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 so signed.
(c) If a document of gift is attached to a donor's motor
vehicle operator's or chauffeur's license, the document of gift
must comply with subsection (b) of this section. If a donor's
intent to make an anatomical gift is imprinted on the donor's
motor vehicle operator's or chauffeur's license, it is a valid
indication of the donor's intent to make an anatomical gift.
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 or technician to
carry out the appropriate procedures.
(e) An anatomical gift by will takes effect upon
certification of death of the testator, whether or not the will
is probated. If, after certification of 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, surgeon or physician assistant;
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:
(1) A writing signed in the same manner as a document of
gift;
(2) Any other writing used to identify the individual as
refusing to make an anatomical gift; or
(3) If the individual is suffering from 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 certification of death, has made an
unrevoked refusal to make an anatomical gift:
(1) The medical power of attorney representative, if
available;
(2) The spouse of the decedent, unless in the six months
prior to the decedent's death the spouse has lived separate and
apart from the decedent in separate places of abode without
cohabitation;
(3) An adult son or daughter of the decedent;
(4) Either parent of the decedent;
(5) An adult brother or sister of the decedent;
(6) A grandparent of the decedent;
(7) A guardian of the decedent at the time of certification
of death; and
(8) The health care surrogate.
(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
certification 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:
(1) A document of gift signed by the person; or
(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 and signed by the
recipient.
(d) An anatomical gift by a person authorized under
subsection (a) of this section may not be revoked by any member
of the same or a prior class if procedures have begun for the
removal of a part from the body of the decedent and the
physician, surgeon or technician removing the part does not know
or has not been notified of the revocation.
(e) An individual's failure to make an anatomical gift
under subsection (a) of this section does not indicate an
individual's objection to the making of 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 his or her
custody, for transplantation or therapy, if:
(1) He or she has received a request for the part from a
hospital, physician, surgeon or procurement organization;
(2) He or she 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) He or she does not know of a refusal or contrary
indication by the decedent or objection by a person having
priority to make an anatomical gift as provided in subsection
(a), section three of this article;
(4) The removal will be performed by a physician, surgeon
or technician;
(5) The removal will not interfere with any autopsy or
investigation; but in the instance that the coroner or chief
medical examiner refuses the request of an anatomical donation
due to interference with an autopsy or investigation, the coroner or chief medical examiner shall document in writing to the
hospital, physician, surgeon or procurement organization the
specific circumstances which result in the interference;
(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 his or
her custody for transplantation or therapy if the requirements of
subsection (a) of this section are met.
(c) The coroner, chief medical examiner or local public
health officer 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. Information regarding anatomical donation; requests for
anatomical gifts; search and notification.
(a) All hospitals in this state shall provide general
information available to the public regarding anatomical donation
in the patient admission area of each facility.
(b) At the time of admission to a hospital, every patient
who is at least eighteen years of age shall receive, as part of
the hospital admission packet, information regarding anatomical donation, including, but not limited to, (1) general facts about
anatomical donation, (2) an explanation of their rights to make
an anatomical gift, (3) a document of gift card for making an
anatomical gift and (4) a card for acknowledging an existing
document of gift. If the patient completes a document of gift
card making an anatomical gift at the time of admission or at any
time thereafter, or if the patient completes a card acknowledging
an existing document of gift, the appropriate notation is to be
prominently placed in the patient's medical record.
(c) On or near the occurrence of each death in a hospital,
the hospital shall contact the regional organ procurement
organization by telephone to determine the suitability for organ,
tissue and eye donation for any purpose specified under this
chapter. The person designated by the hospital to contact the
organ procurement organization shall have (1) the patient's name
and identifier number, (2) the patient's age, (3) the cause of
death and (4) any available current and past medical history
available prior to making the contact. The organ procurement
organization shall collaborate with the hospital's designated
tissue or eye bank when there are tissue or eye donations. The
organ procurement organization, in consultation with the
patient's attending physician or hospital designee, shall
determine suitability for donation.
(d) If it is determined that donation is not appropriate
based on medical criteria, hospital personnel shall note this fact in the patient's record and no further action is necessary.
(e) If it is determined that the patient is a suitable
candidate for anatomical donation, and there is no document of
gift or other information evidencing a refusal to make an
anatomical gift, a designated requestor shall immediately contact
the appropriate persons who are authorized to make an anatomical
gift of a patient's body, as provided in section three of this
article, and inquire as to whether the patient was an anatomical
donor. If those persons contacted by the designated requestor
are unaware of the patient's intent regarding anatomical
donation, and if no document of gift satisfying the requirements
of subsection (b) or (c), section two of this article is found,
the designated requestor shall inform those individuals
authorized to make an anatomical gift that they have the option
of making an anatomical gift of all or part of the patient's
body. The designated requestor shall use discretion and be
sensitive to family circumstances, cultural background and
religious beliefs of the patient.
(f) 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;
(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; and
(3) The coroner or chief medical examiner as provided in
subdivision (2), subsection (a), section four of this article
when a body is placed in that official's custody.
(g) If a law-enforcement officer, fireman, paramedic or
other emergency rescuer finds a document of gift or evidence of
refusal to make an anatomical gift by the search required by
subsection (f) of this section, he or she shall notify the
hospital where the individual or body is taken of the contents
and send the document or other evidence to the hospital.
(h) If at or near the time of death of a patient, a
hospital knows that (1) an anatomical gift has been made pursuant
to subsection (a), section three of this article, (2) a release
and removal of a part has been permitted pursuant to section four
of this article, or (3) that the patient or an individual in
transit to the hospital is a donor, the hospital shall notify the
appropriate donee or procurement organization. The hospital shall
cooperate in the implementation of the anatomical gift or release
and removal of a part.
(i) Any 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) The university of West Virginia system board of
trustees for the scientific purposes of educational institutions
for which it may receive or requisition bodies;
(2) A hospital, physician, surgeon or procurement
organization, for transplantation, therapy, medical or dental
education, research or advancement of medical or dental science;
(3) An accredited medical or dental school, college or
university for education, research, advancement of medical or
dental science; or
(4) 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 certification of 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 certification of death. On request of any person, upon or
after the donor's certification of death, the person in
possession shall allow any 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 certification of 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,
surgeon or physician assistant who attends the donor at death or,
if none, the physician or surgeon who certifies the death.
Neither the physician, surgeon or physician assistant who attends
the donor at death nor the physician or surgeon who certifies the
death may participate in the procedures for removing or
transplanting a part, unless the document of gift designates the
physician or surgeon as provided in subsection (d), section two
of this article.
(c) If there has been an anatomical gift, a technician may
remove any donated parts after certification of death by a
physician or surgeon.
§16-19-9. Coordination of procurement and use; facilitation of
communication.
(a) 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.
(b) The organ procurement organization involved in any
transplant pursuant to this article shall facilitate, on the
recipient's behalf, a request by the recipient to contact the
donor's family, in the priority order provided in subsection (a),
section three of this article.
(c) The organ procurement organization may not provide the
name, address or any other confidential information regarding the donor or the donor's family to the recipient, except upon a
specific request by the member of the donor's family contacted as
provided in subsection (b) of this section.
§16-19-10. Sale or purchase of parts prohibited.
(a) It is unlawful for any person to knowingly acquire,
receive, or otherwise transfer for valuable consideration any
human organ for use in human transplantation. For purposes of
this section, "human organ" means the human kidney, liver, heart,
lung, bone marrow or any other human organ or tissue designated
by the director of health other than blood.
(b) For purposes of this section, valuable consideration
does not include reasonable payments associated with the removal,
transportation, implantation, processing, preservation, quality
control, and storage of a human organ; or the expenses of travel,
housing, and lost wages incurred by the donor of a human organ in
connection with the donation of the organ; or expenses incurred
by nonprofit agencies or corporations to recover expenses
incurred while offering services related to the location,
maintenance and distribution of human organs.
(c) A person who violates this section is guilty of a
felony and, upon conviction thereof, shall be fined not more than
fifty thousand dollars, or confined in a state correctional
facility not more than five years, or both.
§16-19-11. Examination; autopsy.
(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.
§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, on, or after the effective date of this article.
§16-19-13. Immunity.
(a) Any person who acts in good faith in accord with the
terms of this article or with the anatomical gift laws of another
state or a foreign country is not liable for damages in any civil
action or subject to prosecution in any criminal proceeding for
his or her act.
(b) Any 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.
§16-19-14. Short title.
This article may be cited as the "Anatomical Gift Act."