Update Organ Donation Law

Section 1. Legislative intent. The purpose of this legislation is to incorporate the amended provisions of the Uniform Anatomical Gift Act (UAGA) as drafted by the National Conference of Commissioners on Uniform State Laws to enhance the organ donation process. The UAGA was enacted in 1968 following the first successful heart transplant and was revised in 1987 and 2006 to clarify consent rules and other processes. While New York has made recent improvements to its organ donation registry and processes, it still faces a severe organ shortage. It is estimated that bringing New York's anatomical gift consent rules alone into agreement with the UAGA would result in increased numbers of organ donors and would save lives through transplantation. Provisions of this act should not be construed to interfere with a potential donor's recorded intent

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD11680-07-9

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to make a whole body donation in instances where the potential donor's body is suitable for such donation at death, nor does the gift of a whole body preclude donation for transplant, unless such use is expressly refused by the donor or the authorizing party.

§ 2. Short title. This act shall be known and may be cited as the "New York Gift Act".

§ 3. This act enacts into law changes to the anatomical gift process. Each component is wholly contained within a Part identified as Parts A through G. The effective date for each particular provision contained within such Part is set forth in the last section of such Part. Any provision in any section contained within a Part, including the effective date of the Part, which makes a reference to a section "of this act", when used in connection with that particular component, shall be deemed to mean and refer to the corresponding section of the Part in which it is found. Sections four and five of this act set forth the severability and the general effective dates of this act, respectively.

PART A

Section 1. Section 4300 of the public health law, as added by chapter 466 of the laws of 1970, is amended to read as follows:

§ 4300. Definitions. As used in this [section] article, the following terms shall have the following meanings:

1. ["Bank or storage facility" means a hospital, laboratory or other facility licensed or approved under the laws of any state for storage of human bodies or parts thereof, for use in medical education, research, therapy, or transplantation to individuals] "Anatomical gift" or "gift" means a donation of a whole body or part of a human body, to take effect after the donor's death, for the purpose of transplantation, therapy, research or education.

2. "Decedent" means a deceased individual of any age [and] whose body or part is or may be the source of an anatomical gift. The term includes a stillborn infant [or] and, subject to restrictions imposed by law other than this article, a fetus.

3. "Disinterested witness" means a witness other than the spouse, domestic partner, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift, or a close friend, or another adult who is related to the decedent by blood, marriage, or adoption.

4. "Document of gift" means an organ donor card, whole body organ donor card, driver's license authorization to make an anatomical gift, pursuant to paragraph (a) of subdivision one of section five hundred four of the vehicle and traffic law, authorization to make an anatomical gift pursuant to any of the methods in subdivision five of section forty-three hundred ten of this article, or any other written authorization for an anatomical gift. The term "document of gift" includes a statement on a driver's license, identification card, enrollment in a donor registry, or any other anatomical gift document valid pursuant to the laws of this or any other state.

5. "Domestic partner" has the same meaning as described in subdivision seven of section twenty-nine hundred ninety-four-a of this chapter.

6. "Donee" means an individual or entity authorized to accept an anatomical gift pursuant to section forty-three hundred two of this article.

7. "Donor" means an individual [who makes a gift of all or part of his] whose body or part is the subject of an anatomical gift.

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[4.] 8. "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.

9. "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.

10. "Hospital" means a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States Government, a state, or a subdivision thereof, although not required to be licensed under state laws.

[5.] 11. "Human paired organ donation" means the donation and receipt of human organs under the following circumstances:

(a) An individual (referred to in this subdivision as the "first donor") desires to make a living donation of a human organ specifically to a particular patient (referred to in this subdivision as "first patient"), but such donor is biologically incompatible as a donor for such patient.

(b) A second individual (referred to in this subdivision as the "second donor") desires to make a living donation of a human organ specifically to a second particular patient (referred to in this subdivision as the "second patient"), but such donor is biologically incompatible as a donor for such patient.

(c) Subject to paragraph (d) of this subdivision, the first donor is biologically compatible as a donor of a human organ for the second patient, and the second donor is biologically compatible as a donor of a human organ for the first patient.

(d) If there is any additional donor-patient pair as described in paragraph (a) or (b) of this subdivision, each donor in the group of donor-patient pairs is biologically compatible as a donor of a human organ for a patient in such group.

(e) All donors and patients in the group of donor-patient pairs (whether two pairs, or more than two pairs) enter into a single agreement to donate and receive such human organs, respectively, according to such biological compatibility in the group.

(f) Other than as described in paragraph (e) of this subdivision, no valuable consideration is knowingly acquired, received, or otherwise transferred with respect to the human organs referred to in such paragraph.

12. "Non-transplant anatomic bank" means any person or facility that solicits, retrieves, performs donor selection and/or testing, preserves, transport, allocates, distributes, acquires, processes, stores, or arranges for the storage of non-transplant anatomic parts, including whole bodies, body segments, organs, or tissues from living or deceased donors, for education and/or research purposes specifically authorized by section forty-three hundred two of this article. The following shall not constitute a non-transplant anatomic bank:

(a) Any person or entity that stores non-transplant anatomic parts, except whole bodies and body segments, solely for purposes of research and/or education conducted by such person; provided the person or entity maintains on its premises a properly executed anatomical gift consent document, and

(i) such person or entity is a legal donee pursuant to section fortythree hundred two of this article and obtains all organs/tissues from a tissue bank or non-transplant anatomic bank licensed by the department; or

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(ii) is a general hospital conducting pathology services or research on non-transplant anatomic parts including whole bodies, recovered from within the facility from a living or deceased source;

(b) Any person or entity whose activities within the state of New York are limited to distribution of non-transplant anatomic parts to a tissue bank or non-transplant anatomic bank licensed by the department;

(c) Any person or entity that uses prepared slides and/or human-derived stem cell lines for purposes of education and/or research; and

(d) An employee of the federal government, provided an anatomical gift consent document has been executed in accordance with section fortythree hundred one of this article.

13. "Organ procurement organization" means a person designated by the secretary of the United States Department of Health and Human Services as an organ procurement organization.

14. "Parent" means a parent whose parental rights have not been terminated.

15. "Part" of a body means and includes organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of a human body, and "part" includes "parts". The term does not include the whole body.

[6.] 16. "Person" means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.

[7.] 17. "Physician" or "surgeon" means a physician or surgeon licensed or authorized to practice under the laws of any state.

[8.] 18. "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.

19. "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.

20. "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

21. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

22. "Refusal" means a record created under section forty-three hundred five of this article that expressly states an intent to bar other persons from making an anatomical gift.

23. "State" includes any state, district, commonwealth, territory, insular possession, and any other area subject to the legislative authority of the United States of America.

24. "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to solicit, retrieve, perform donor selection and/or testing, preserve, transport, allocate, distribute, acquire, process, store or arrange for the storage of human tissues for transplantation, transfer, therapy, artificial insemination or implantation, including autogeneic procedures.

25. "Whole body" means the intact corporeal remains of an individual after the time of death.

26. "Whole body donor card" means a card or other writing indicating the donor's authorization to make an anatomical gift of a whole body to a non-transplant anatomic bank or other donee for purposes of education or research.

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§ 2. This act shall take effect immediately.

PART B

Section 1. Section 4301 of the public health law, as amended by chapter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of the laws of 2016, is amended to read as follows:

§ 4301. Persons who may execute an anatomical gift. 1. (a) Any individual of sound mind and eighteen years of age or more may [give all or any part of his or her body] make an anatomical gift to take effect upon their death for any purpose specified in section forty-three hundred two of this article, [the gift to take effect upon death] limit an anatomical gift to one or more of those purposes, or refuse to make an anatomical gift. In any case where the donor has a properly executed [an organ donor card, driver's license authorization to make an anatomical gift, pursuant to paragraph (a) of subdivision one of section five hundred four of the vehicle and traffic law, registered in the New York state organ and tissue donor registry under section forty-three hundred ten of this article, or has otherwise given written authorization for organ or tissue donation,] document of gift authorization for donation shall not be rescinded [by an objection by a member of any of the classes specified in paragraphs (a) through (h) of subdivision two of this section,] or amended by any other person except upon a showing that the donor revoked the authorization pursuant to section forty-three hundred five of this article.