Organ Donation Law

The first thing to know is that organ donation can be a long process. Depending on the availability of an organ and the urgency of the patient’s need, it may be several years before the potential recipient is offered an organ. More than 113,000 people in the U.S. are waiting for an organ; one more person is added to the national waiting list every 10 minutes. Approximately 20 people die each day because an organ was not available in time.

As you might expect, most transplanted organs come from deceased donors. A smaller number of organs come from healthy people. Those people are usually donating to a friend or family member who needs a kidney or a liver. More than 6,000 transplants from living donors are performed each year.

The primary law governing organ donation in the United States is the Uniform Anatomical Gift Act (UAGA). It was developed based on the belief that the experience and policy of organ donation should be consistent throughout the country, regardless of what state you live or die in.

The UAGA is a piece of model legislation that is then passed into law state by state. Recognizing the need for a single approach to organ donation policy, the UAGA has been enacted in every state in the United States, providing national consistency.

Organ donation is governed by the laws on gift giving. Because medical providers are trained in the doctrine of informed consent, they are often surprised to learn that organ donation laws do not follow the same legal principles.

Informed consent is the concept of permission granted by a patient for a particular treatment after being told the risks and benefits of the procedure. Deceased donation, however, presents neither risks nor benefits to the donor because the donation occurs after death.

Moreover, individuals may provide permission for donation years in advance of their death. This means it is unknowable what organs will be suitable to actually donate at the time of death. An individual cannot give informed consent for a procedure that is ambiguous. For these reasons, informed consent as a legal structure is inappropriate for the regulation of organ donation. Alternatively, gift law provides the legal framework under the UAGA.

What Are the Guidelines for Organ Donation?

People of all ages and medical histories should consider themselves potential donors. Your medical condition at the time of death will determine what organs and tissues can be donated.

Organs and tissues that can be donated include:

• Heart
• Kidneys
• Lungs
• Pancreas
• Liver
• Intestines
• Corneas
• Skin
• Tendons
• Bone
• Nerves
• Heart valves

The process of determining eligibility for receiving an organ transplant involves:

• Referral to a transplant unit by a specialist physician of a patient with end-stage organ disease
• Assessment by a multidisciplinary team at the transplant unit. This takes into consideration medical history and other relevant factors that can affect transplantation outcomes. One of these factors is the ability to adhere to medical therapy. For example, an alcoholic who needs a liver might not receive one if they are unwilling to stop drinking

While a patient is waiting for transplantation, the transplant team regularly reviews their case to ensure that they remain suitable for transplantation. Individuals may be assessed as no longer eligible for organ transplantation if their condition changes, either because their organ function improves to a point that they no longer need a transplant or because their condition deteriorates to the point where they are no longer healthy enough for a transplant.

Overriding conditions that guide medical personnel who are involved in transplant work include:

• Processes and policies for determining a patient’s eligibility for transplantation and the method for allocating donated organs must be just and equitable
• Decision-making about transplantation must recognize and respect the autonomy of the patient
• The allocation and transplantation of organs must be undertaken in a manner that protects patients from harm
• The process of allocating and transplanting organs should acknowledge both the needs and well-being of the patient and the necessity to achieve the best outcome for the community as a whole
• The execution of transplantation activities must be transparent and open to scrutiny, while at the same time ensuring that the personal anonymity and privacy of donors and recipients are always protected

A national computer system and strict standards are in place to ensure ethical and fair distribution of organs. Organs are matched by blood and tissue typing, medical urgency, waiting time and geographic location.

Do Any Medical Conditions Exclude Someone from Becoming an Organ Donor?

Not everyone can donate an organ. Certain conditions would exclude someone from donating organs.

These include:

• Having a severe infection
• Having HIV
• Having actively spreading cancer
• Having diabetes
• Having kidney or heart disease

How Can I Donate Organs?

People that are willing to donate organs can express their wishes in a variety of different ways.

These include:

• Donor cards, obtainable from your state’s donor registry. In the event that an accident should occur, these cards identify you as an organ donor
• State driver’s licenses have identifying marks that indicate you are an organ donor
• Hospitals have specific forms to sign that indicate the intention to become an organ donor
• Advance directives. Advance directives, also known as living wills, are legal documents that provide instructions regarding medical care. These documents contain instructions regarding how an individual is to be treated should they become incapacitated or unable to make decisions regarding their own health care. An advance directive can also include instructions about your wishes concerning organ donation
• The most important step is to inform family members and guardians of your intention and wish to become an organ donor. This prevents confusion when you are unable to clearly indicate your wishes

Can I Revoke My Decision to Donate Organs?

Yes. People who have indicated an intention to donate organs can cancel their wishes in several different ways. Revocation can occur by signed statement, by oral statement, by notifying your physician, by getting a new driver’s license, or by removing your name from your state’s donor registry.

Additionally, it is important to notify family members and destroy any documents you may have created earlier when you were willing to participate in organ donation.

What If I Don’t Indicate an Intention to Donate?

If you do not indicate an intention to donate organs or a disinterest in doing so, it will be up to your family members.

Family members do have the right to donate your organs upon death if you have not made clear what your preferences are. The power of attorney to make the decision is usually given to your spouse or children.

To avoid uncertainty it is always best to inform family members of your decision to donate or not donate vital organs.

Can I Be a Donor If My Family Doesn’t Want Me to Donate My Organs?

If you are registered as a donor or have otherwise indicated your intention to donate, that is legally binding permission for donation at the time of your death under the UAGA. Family members do not have the right to override this decision. This is not only the law, it is a fact – in current practice donations proceed even over family objections.

Should I Contact an Attorney?

An experienced personal injury attorney can help guide you through the process of making clear your decision to donate organs. An attorney can help to make sure that your wishes are honored upon your death.

Contact an injury attorney through LegalMatch if you have any questions regarding your legal rights, or if you need to file a lawsuit for a claim.