A decedent upon his/her death or his/her survivors may wish to donate certain organs or body pats of the decedent for medical research, or to a person in need or for specific purposes. For this purpose, states have enacted the provisions of the Uniform Anatomical Gift Act (“Act”). The Act governs the making of anatomical gifts of one’s cadaver to be dissected in the study of medicine. The law prescribes the forms by which such gifts can be made.
According to the Act, an individual who is at least 18 years of age can:
- Make an anatomical gift for any of the purposes specified in the Act;
- Limit an anatomical gift to one or more of those purposes; or
- Refuse to make an anatomical gift.
The donation can be made orally, if the communication is reduced to writing and signed by the recipient of the communication[i]. A coroner or medical examiner may release and permit the removal of a part from a body for transplantation or therapy, if the official has received a request from a hospital, physician, surgeon, or procurement organization. However, the official has to make a reasonable effort to locate and examine the decedent’s medical records and inform the appropriate persons of their option an anatomical gift. The official releasing and permitting the removal of a part must maintain a permanent record containing:
- Name of the decedent,
- Person making the request,
- Date and purpose of the request,
- Part of the body requested,
- Person to whom it was released.
If a gift is made without designating a donee or if the donee is not available or rejects the anatomical gift, then the anatomical gift can be accepted by any hospital[ii]. If a hospital comes to know that an anatomical gift is made at or near the time of death of a patient, then the hospital must notify the donee the same and must cooperate in the implementation of the anatomical gift or release and removal of a part[iii].
However, a hospital, physician, surgeon, coroner, medical examiner, local public health officer, technician, or other person who acts in accordance with the Act or with the applicable anatomical gift law of another state or a foreign country or attempts in good faith is not liable for a civil action or criminal proceeding[iv].
The Act does not require organs to be harvested before an autopsy is performed. The statute specifically permits harvesting any time after death, and prior to embalming[v]. However, a person who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability[vi].
[i] Sattler v. N.W. Tissue Ctr., 110 Wn. App. 689 (Wash. Ct. App. 2002)
[ii] Uniform Anatomical Gift Act, 1987
[iv] Nicoletta v. Rochester Eye & Human Parts Bank, Inc., 136 Misc. 2d 1065 (N.Y. Sup. Ct. 1987)
[v] Rahman v. Mayo Clinic, 578 N.W.2d 802 (Minn. Ct. App. 1998)
[vi] Ramirez v. Health Partners, 193 Ariz. 325 (Ariz. Ct. App. 1998)