Steve and Judy are married with one child. Although they are in their early twenties, they have already executed a will and advance directives for health care. Neither their wills nor the advance directives mention whether Steven and Judy want their organs, corneas, or tissue donated to a patient in need or to research. Instead, Steven and Judy checked the box on their driver’s licenses indicating that they are organ donors. Steve and Judy wonder if this is enough. Will doctors abide by the checkmark in this box if either Steve or Judy dies in an accident? Can they specify that they only want to be organ donors for other patients, rather than for research? What if Steve and Judy are injured and become “brain dead” but could be kept alive for years on artificial life support? Steve and Judy are thinking about including in their wills the fact that they want to be organ donors, but they do not want the hassle of changing their wills if they should change their minds later on.
Organ donation is known in legal circles as an anatomical gift, which includes organs, tissue, and even bones. For the purpose of this chapter, though, we will use organ as a general term to include any part of the anatomy that can be donated.
Almost anyone can be an organ donor, depending on a person’s medical condition and the circumstances surrounding death. Donors need to be at least 18 years old (with a few exceptions), but there is no maximum age. Some donors are over age 70.
You can donate your entire body for anatomical study, or you can specify organs and tissues. The most needed organs are kidneys, hearts, livers, lungs, and pancreases. Tissue donations include eyes, skin, heart valves, bone, and bone marrow. You can donate bone marrow and a kidney while you are still living.
No. The National Organ Transplant Act, a federal law, makes it illegal to buy or sell organs for profit. You can be sentenced to five years in prison or a $50,000 fine, or both. It is also illegal under the law of most states to sell organs for profit. If you donate your organs, though, you can be reimbursed for some of the costs involved. For example, if you donate one of your kidneys, it is most likely legal for you to accept payment for your lost wages and medical expenses. The amount of these payments must be reasonable. Anything outlandish would be considered profit, which is not legal.
Sometimes, but only if there is some benefit to the child or incompetent person. Legally a child or an incompetent person is not able to consent to being an organ donor. The fear is that people needing organs will prey on vulnerable people. There are rare situations when the guardians of children or incompetent persons will be allowed to let them be organ donors.
In one example, a young man, Tommy, was suffering from a fatal kidney disease. His parents and many relatives had themselves tested to see if any of them could provide Tommy with one of their kidneys. None of them were medically acceptable. As a last resort, Tommy’s parents had his brother, Jerry, who was mentally disabled and institutionalized, tested. Jerry was a match. The parents asked a court to allow them to have one of Jerry’s kidneys removed and transplanted into Tommy.
The court had a difficult decision to make. In the end, it found that Tommy and Jerry were very close and that Jerry relied on Tommy emotionally and psychologically. To lose his brother would devastate him. The parents had made every possible effort to find another donor, but to no avail. Tommy’s time was running out. Jerry’s parents were getting older. If Jerry lost Tommy, he would also lose his financial support. The court allowed the parents to have one of Jerry’s kidneys removed and transplanted into Tommy because giving Tommy the chance to live provided a benefit to Jerry.
In another instance, the parents of seven-year-old twins were allowed to have a kidney transplanted from one twin into the other. Courts will not always allow this, though. The child or the incompetent person must be the only available option for a court to even consider it. In Wisconsin, a family wanted a kidney taken from their son, an institutionalized schizophrenic, and transplanted into their daughter, a mother of six. Other family members were acceptable matches, but none of them wanted to donate a kidney. The court did not allow the family to take a kidney from their son.
Your decision on whether to become an organ donor will be based not on legal concepts, but on your culture, religion, and values. The law does affect how your family or doctors carry out your decision. Nearly all of the world’s major religions consider organ donation a gift of life to others. You may wish to ask your pastor whether your religion endorses organ donation.
Survey after survey shows that the vast majority of us are in favor of organ donation. Yet very few of us donate our organs. It is a very personal decision, but you should consider this: at this time there are more than 60,000 people on the waiting list for organs with the United Network for Organ Sharing (UNOS), which is the national organ waiting registry. About one-third of the people who need lifesaving organs such as hearts or livers will die before an available organ is found.
THE LAW MAKES IT POSSIBLE
Every state has some form of a law called the Uniform Anatomical Gift Act (UAGA). This law allows you, if you are at least 18 years old and of sound mind, to:
Now consider the possibility that one day you—or your spouse or child—could be on that waiting list. One concern of donors is whether donating their organs will affect how their bodies will appear at open-casket funerals. Removal of organs is a surgical procedure and will rarely interfere with funeral or burial arrangements. The law requires that hospitals and doctors treat the body with the utmost care when removing organs and tissue. Any unnecessary damage or injury to the body is forbidden.
Once the organs are removed, the body is returned to the family so that funeral or burial arrangements may be made.
TALKING TO A LAWYER
Hospitals and Organ Donations
Q. Why did the hospital ask me if I was an organ donor when I was admitted for a minor procedure?
A. Almost every state requires hospitals to ask you, when admitted, whether you are an organ donor. If you say yes, the hospital is required to get a copy of your donor card, driver’s license, or advance directive indicating that you wish to donate your organs. If you say no, the hospital is required to tell you about your options for deciding whether to become an organ donor.
If you are near death and the hospital has no record of your decision about being an organ donor, the hospital is required to ask your next of kin to donate your organs. The purposes of these laws is to find out and to document your wishes, as well as to increase the number of organs available for transplant. Your doctor will make every effort to save your life even if you are an organ donor. Medical and legal standards require that organ donation only becomes an issue after all efforts to save your life are exhausted and you are declared brain dead.
Answer by Cindy J. Moy,
attorney and author,
Golden Valley, Minnesota
Sounds like a silly question, doesn’t it? Medical technology is advancing at breakneck speed, and death is being redefined. Death used to occur when your heart stopped beating. Then artificial life support was developed for people with severe brain injuries. Suddenly there was a new form of death—brain death. Doctors and hospitals were afraid to stop treatment on a brain dead person because that person’s heart was still beating with the help of artificial life support.
LEARNING THE LINGO
Brain dead: A patient is considered brain dead when brain function has stopped, including that which controls breathing and heart activity. All circulatory and respiratory functions are maintained by artificial life support. In essence, brain dead is the same as “dead.”
In 1980, death received a new definition. You are dead when either your circulatory and respiratory functions stop for good or when your entire brain, including the brain stem, irreversibly stops functioning. Most states legally define death in this way. If you are an organ donor, circulatory and respiratory functions will be kept going by artificial life support if you are brain dead to preserve your organs until they can be harvested for transplantation.
LEARNING THE LINGO
Death: Death occurs when a person either sustains irreversible cessation of circulatory and respiratory functions or suffers irreversible cessation of all functions of the entire brain, including the brain stem.
It is not a good idea to include your wishes regarding organ donation in your will. Doctors will need to remove your organs or tissue under very specific and delicate timelines and procedures. By the time your will is read, the opportunity to donate your organs will have passed. Instead, include your wishes regarding donation of organs in your advance directives on health care, and tell your family what you want them to do in that situation.
WITNESSES USUALLY NOT NECESSARY
At one time the law required that an organ donor card be signed in the presence of two witnesses. Today the law does not require you to have witnesses, unless you do not intend to put your wishes in writing. In that case, if you want to be an organ donor, make your wishes clear in front of at least two people.
If you do include organ donation in your will, be sure your family knows of your wishes so that they can bring the will to the hospital in the event of your death. Removal of organs is considered by law to be a gift that becomes effective at your death. The hospital does not have to wait for the will to clear probate in this instance.
Your doctor will almost always require your family’s consent in order to remove organs, regardless of your wishes or whether you filled out an organ donor card. Even if you include your donation in your will and advance directive, it is customary for doctors to ask your family to agree to the donation. In some states hospitals are required by law to abide by the deceased person’s wishes regardless of the family’s consent. In practice, though, in order to avoid malpractice lawsuits, hospitals and doctors are reluctant to go against the wishes of the family members.
If you did not indicate whether you want your organs donated, then your family will make that decision for you when you die. Your family will decide whether to donate all or part of your body. Usually your doctor will seek a decision from your spouse first. If you do not have a spouse, the doctor will turn to your adult son or daughter. If you do not have children, the doctor will get a decision from your parent, your adult brother or sister, a grandparent, or your guardian.
TALKING TO A LAWYER
If You Change Your Mind
Q. What should I do if I change my mind about being, or not being, an organ donor?
A. You can change your decision at any time. To revoke your decision to be an organ donor, write a statement to that effect and put it with your driver’s license and your advance directive. You can also revoke your decision orally, but this is not as surefire as a written statement. In either case, tell your family and loved ones about your decision so that there is no confusion about your wishes.
Answer by Cindy Moy,
attorney and author,
Golden Valley, Minnesota
In 1984, Congress enacted the National Organ Transplant Act (NOTA). As part of NOTA, organ procurement organizations (OPOs) were established. These organizations are divided into separate service areas. When you die, they coordinate the procurement of your organs with the transplantation process. This includes keeping a list of possible recipients and training hospital staff in getting the family’s consent.
There is no cost to the organ donor for donating organs. The OPO assumes all the expenses associated with organ recovery. This does not include funeral and burial expenses, which are still the responsibility of the donor’s family.
When your doctor declares you dead and your family consents to organ donation, the OPO staff is called into the hospital to organize the process. OPO makes the arrangements to harvest your organs. This involves removing your organs surgically, testing your tissue for disease and to determine its type, comparing your gift to the list of potential recipients, and transporting your organs to the transplant center.
The United Network for Organ Sharing keeps a national computer list of patients waiting for transplants. This list is used to match your organs with patients who might receive them through a transplant. Information about you, such as your blood type, is entered into the computer-match program. Possible recipients are listed according to the time they have been on the waiting list, their age, and their degree of compatibility with the characteristics of the donor’s organs. Organs are offered to local patients first. If there is no patient locally that is a good match for the organ, the organ will be offered on a regional or national level. When transplants first became an option, committees would receive personal information about patients such as their race, income, gender, family status, and job before making a decision. The UNOS computer-match program makes every effort to select patients regardless of their race, gender, religion, or other personal information.
NEEDED: THE WISDOM OF SOLOMON
Choosing an organ recipient means that only one of two or more patients will have a chance of survival. So which person should get the organ? Several decades ago the decision was made by organ screening committees that used personal information about patients to make their choices. Today, more objective methods for determining recipients are used, for good reason. For example, consider what a member of a Seattle organ screening committee stated about having to choose between possible recipients:
The choices were hard.… I remember voting against a young woman who was a known prostitute. I found I couldn’t vote for her, rather than another candidate, a young wife and mother. I also voted against a young man who, until he learned he had renal failure, had been a ne’er-do-well, a real playboy. He promised he would reform his character, go back to school, and so on, if only he were selected for treatment. But I felt I’d lived long enough to know that a person like that won’t really do what he was promising at the time.