The Law on Donating Organs

By Bo Links

How does a person authorize an organ gift in California?
Organ gifts can be stipulated in an advance health care directive under Probate Code section 4701, or under the Uniform Anatomical Gift Act. The stipulation must be clear, and preferably in writing. Other popular methods include checking a box when either applying for or renewing a driver's license, and filling out an online form at www.donatelifecalifornia.org. The law also allows oral agreements for organ gifts to be made "during a terminal illness or injury of the donor, by any form of communication that clearly expresses the donor's wish, addressed to at least two adults, at least one of which is a disin-terested witness." If the gift is made verbally, the witnesses then memorialize the communication in writing (Cal. Health & Saf. Code § 7150.20).

What if there is a conflict?
What if instructions in a person's advance health care directive conflict with a gift under the Uniform Anatomical Gift Act? For example, a person may have stipulated in an advance health care directive that specific procedures be taken to provide or withdraw life support in the event of irreversible injuries, and those instructions render organs unsuitable for transplantation. In such cases, the attending physicians are required to confer with the donor-patient, and if that is not possible, then with the person designated in the advance health care directive. The conflict is to be resolved as quickly as possible (Cal. Health & Saf. Code § 7151.10).

Before an actual organ harvest-ing can occur, how is death determined?
The Uniform Determination of Death Act declares that a person who has sustained either irre-versible cessation of circulatory or respiratory functions, or irreversible cessation of all func-tions of the entire brain, includ-ing the brain stem, is dead. The determination of death must be made according to accepted medical standards (Cal. Health & Saf. Code § 7180). At present, 40 states-including California-have adopted the statute, along with the District of Colum-bia, Puerto Rico, and the U.S. Virgin Islands.

How many doctors must concur?
The law requires independent confirmation by at least two physicians, and it expressly stipulates that the doctors who make the determination shall not be the ones removing organs for direct transplantation-that work must be done by an independent medical team (Cal. Health & Saf. Code §§ 7181, 7182).

What are the hospital's responsibilities?
Every general acute-care hospital is required to develop a protocol for identifying potential organ and tissue donors. Among other things, the hospital must notify the next of kin or other person designated in an advance health care directive and inquire whether the deceased was an organ donor, or if the family is a donor family. If not, the family shall be informed of the option to donate organs or tissues. If the family (or designated person) agrees to a donation, the hospital must notify an organ-and-tissue procurement organization and cooperate in the procurement of the anatomical gift. If there is no procurement organization in the region, the hospital is required to contact such an organization outside the region as appropriate (Cal. Health & Saf. Code § 7184).

The protocol must encourage reasonable discretion and sen-sitivity to the patient's family in all discussions regarding organ and tissue donation. In addition, the protocol must take into account the deceased individual's religious beliefs.

In all cases, if a person stip-ulates in a health care directive that he or she does not wish to donate organs, those wishes must be honored.

Finally, it is illegal to sell organs that are harvested from a deceased individual. The crime is a felony punishable by a fine of up to $50,000 and up to five years in prison (Cal. Health & Saf. Code § 7150.75).

Is there any protection for doctors?
Doctors who may fear getting caught in the middle of an organ-donation controversy have a safe harbor. A doctor who complies with the statutes, or attempts to do so in good faith, is entitled to immunity from civil claims and criminal prosecution (Cal. Health & Saf. Code § 7150.80).

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