Winter, 2006
By Alexandra K. Glazier, JD, MPH
General Counsel, New England Organ Bank Adjunct Professor of Health Law, Boston University School of Law
Most people assume the donor heart symbol on their driver's license ensures they will become a donor if they should die. In fact, the donor heart symbol has had no legal meaning; your family could override your wishes. The result is that organs suitable for transplant are not always recovered from people who wished to be donors. 1
With over 89,000 Americans currently waiting for a transplant and 6,600 dying each year waiting, any measure making it easier for people to become donors will have a powerful impact. 2 A national movement now exists to establish donor registries that allow people to designate themselves as donors in a manner that is legally recognized and readily apparent to the health care and procurement professionals who can carry out their wishes. This donor rights movement has two key components: ensuring that the law recognizes donor designation and establishing an effective mechanism for a person's designation to be known.
Donation is governed by state law, creating the possibility of significant variations from state to state. In 1968, the Uniform Anatomical Gift Act (UAGA) was promulgated in an attempt to provide national uniformity. This original UAGA authorized an adult to "gift" organs and tissues upon death by filling out a donor card or by making a donation statement in a will, without requiring further family consent or permitting family to override that gift. Within a decade, all 50 states adopted the UAGA.
If the law for over 30 years has supported an individual's right to make a donation decision, why has the practice always been to defer to the family? Some claim that fear of litigation has thwarted recognition of valid donor designations. There are, however, no reported cases of a family suing health care or donation professionals for recovering organs and tissues, over the family's objection, from an individual who had a valid donor card or will designation. Moreover, the UAGA, provides legal immunity for those professionals who act in good faith in carrying out organ and tissue donations. And the courts have repeatedly upheld this liability protection.
Deferring to families likely became standard practice because donor cards and wills are rarely found within the critically short time frame required for a donation decision. To advance donor rights, the law needed to expand the legally recognized ways a person could "gift" organs and tissues.
The idea is simple. People who designate themselves as donors on their license are entered into a donor registry, an electronic database of individuals who want to be organ and tissue donors upon death. The law recognizes inclusion in the donor registry as legally equivalent to signing a donor card. Following a death referral from a hospital, 3 the donor registry is searched to confirm whether an individual has made a donor designation. If a potential organ and/or tissue donor is in the donor registry, donation of suitable organs and tissue for transplantation can proceed. If a potential donor is not in the donor registry (and in the absence of any other donation document), the family is offered the opportunity to donate suitable organs and/or tissue.
Massachusetts will be joining over half the states in the US in establishing a donor registry. 4 The Massachusetts Donor Registry, established by statute and implemented through a cooperative agreement between the Massachusetts Registry of Motor Vehicles (RMV) and the New England Organ Bank, is expected to be activated in early 2006. The RMV will enter names of individuals who designate themselves as donors at the time of licensure or renewal into a database accessible to the New England Organ Bank on a 24-hour/ 365-day-a-year basis. When a hospital within Massachusetts makes a referral regarding a potential donor to the New England Organ Bank, the Donor Registry database will be searched to determine whether that individual had made a donor designation. This is currently the practice in Connecticut and Rhode Island, where computerized donor registries went "live" this past year.
One question that arises is: How will health care and donation professionals respond if a family objects to recovery of organs and/or tissues from a person who is in the donor registry? Will the hospital back off to avoid antagonizing a family, particularly in cases where the care preceding death could result in a potential malpractice suit? These are important risk management and public relations questions, but not legal ones - the law clearly supports and protects those who carry out valid donations. Experience across the country, although anecdotal, shows families are far more likely to be relieved that the difficult donation decision has already been made. Very rarely does a family, knowing the deceased wished to be a donor, vehemently oppose donation.
Another frequent question is: What if a person who has a donor symbol on his license changes his mind? The UAGA already provides ways to designate a refusal to become a donor, for example, any signed statement to that effect is legally valid.
A rational step towards addressing the critical shortage of organs for transplant is to ensure that we recover all suitable organs from those who wish to donate. In this way, the concepts behind donor rights and registries can work together to save lives.
Footnotes
1 Because a driver's license is often not found when a donation decision must be made, no data is available to quantify how often a person's wish to become a donor is overridden by family members.
2 One donor can provide, on average, three organ transplants and approximately 40 tissue transplants.
3 Hospitals are required by federal regulation to refer all deaths and imminent deaths to the Organ Procurement Organization designated to serve the applicable geographic area. See 42 C.F.R. §482.45(a)(1).
4 In New England, Connecticut, Maine and Rhode Island have also passed donor registry laws and legislation is currently pending in New Hampshire and Vermont.
