AB570: Bill Text

LRB-2022/2

RLR:cjs&jd:jf

2007 - 2008 LEGISLATURE

2007 Assembly BILL 570

November 6, 2007 - Introduced by Representatives Wieckert, Kerkman, Staskunas, Hahn, Davis, Jeskewitz, Lothian, A. Ott, Black, Turner, Berceau, Cullen, Townsend, A. Williams, Bies, Ballweg, Tauchen and Wasserman, cosponsored by Senators Risser, Roessler, Miller, Schultz, Kedzie, Olsen, Coggs, Lassa and Sullivan. Referred to Committee on Health and Healthcare Reform.

AB570,1,7 An Act to repeal 343.175 (3) (b); to renumber 343.175 (3) (a); to amend 71.05 (10) (i) 1., 146.345 (title), (1) (a), (b) and (c) and (2), 146.82 (2) (a) 19., 155.20 (8), 155.30 (1) (form), 230.35 (2d) (a) 2., 252.15 (2) (a) 1. and (am) 1. and 2. and (5) (a) 5., 343.17 (3) (b), 343.175 (1), 343.175 (1r), 343.175 (2) (title), 343.175 (2) (a), 343.175 (2) (ag), 343.50 (3), 343.50 (4m) (a), 343.50 (4m) (b) and 343.50 (8) (b); and to repeal and recreate 157.06 of the statutes; relating to: anatomical gifts, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Current anatomical gift law

Current anatomical gift law is based, with some modifications, on the Uniform Anatomical Gift Act of 1987 promulgated by the National Conference of Commissioners on Uniform State Laws.

Anatomical gift of one's body or body parts; refusal to make anatomical gift. Under current law, an anatomical gift is a donation of a person's body or body parts (organs, including eyes, tissues, or bodily fluids) for transplantation, therapy, or medical research or education, that is effective upon the person's death. Currently, a person who is at least 18 years old may make an anatomical gift of his or her body or body parts by signing a written document of gift, or if he or she cannot do so, by directing another to sign a document of gift on his or her behalf. A person who is at least 18 years old may also refuse to make an anatomical gift of his body or body parts by signing a written refusal or, if the person has a terminal illness or injury, by communicating a refusal orally or by any other means of communication. The Department of Transportation must include on driver's licenses and identification cards a writing that may serve as a document of gift or a refusal, and must provide a sticker indicating organ donor status, which a person may affix to his or her driver's license or identification card. However, use of the sticker alone does not effect an anatomical gift. A person may amend or revoke a document of gift or a refusal during his or her lifetime.

Upon the death of a person who has made an unrevoked anatomical gift of his or her body or body parts, the anatomical gift is effective without need of consent or concurrence by any other person. An individual's unrevoked refusal bars all others from making an anatomical gift of the person's body or body parts. Absent contrary indications by a donor, an anatomical gift of a body part does not constitute a refusal or limitation on making an anatomical gift of another body part of the donor. Absent contrary indications by a donor, a revocation or amendment of an anatomical gift does not constitute a refusal to make another anatomical gift.

Anatomical gift after death by a relative or agent. If a deceased did not make an unrevoked anatomical gift or unrevoked refusal relating to his or her body or a particular body part during his or her lifetime, the following relatives or agents of the deceased, in the order of priority listed, may make an anatomical gift of the body or body part: 1) spouse; 2) adult child; 3) parent; 4) adult sibling; 5) grandparent; 6) guardian; or 7) health care agent. A relative or agent may not make an anatomical gift of a deceased's body or body parts if he or she knows that the deceased refused to allow an anatomical gift of his or her body or body parts or if any person with the same or higher priority to make an anatomical gift objects to making an anatomical gift. A relative or agent of a deceased may make an anatomical gift on behalf of the deceased by signing a written document of gift or providing an oral authorization for a gift that is recorded, transcribed, and signed. If an anatomical gift is made by a relative or agent of the deceased, any person with equal or higher priority to make an anatomical gift may revoke the anatomical gift unless procedures to remove a body part from the deceased have begun.

Who may accept an anatomical gift. A hospital, physician, or organ procurement organization (OPO) may accept an anatomical gift made for transplantation, therapy, medical research or education, an individual may accept an anatomical gift of a body part for transplantation or therapy, and a school may accept an anatomical gift for medical research or education.

Procurement process. Federal law requires that hospitals notify a federally approved OPO or its designee of deaths and imminent deaths at the hospital. The OPO determines the medical suitability of a deceased's organs for donation, and may also determine the medical suitability of eyes and tissues for donation. Under federal law, if organs, tissues, or eyes are medically suitable for donation, the hospital, in collaboration with the OPO, must ensure that the family of the deceased is notified of its options to donate or refuse to donate organs, tissues, or eyes. The Organ Procurement and Transplant Network, created under federal law, controls the allocation of hearts, kidneys, livers, lungs, and pancreases for transplantation. Federal law also requires hospitals to have agreements with tissue banks and eye banks for the retrieval, storage, and distribution of tissue and eyes.

Immunity. Under current law, a person who acts, or in good faith attempts to act, in accordance with the anatomical gift law of this state or applicable anatomical gift law of another state or country is immune from civil or criminal liability for such acts.

Changes made in the bill

This bill makes changes to anatomical gift law based on the Revised Uniform Anatomical Gift Act of 2006 promulgated by the National Conference of Commissioners on Uniform State Laws.

Who may make an anatomical gift during a person's lifetime. The bill provides that a person who is at least 15 and one-half years old or an emancipated minor may make an anatomical gift of his or her body or body parts. The bill also allows others under the following circumstances to make an anatomical gift on behalf of a person during the person's lifetime: a parent of an unemancipated minor may make an anatomical gift on behalf of the minor if the minor does not object; a health care agent for a person, or another designated by the person, may make an anatomical gift on behalf of the person; and a guardian may make an anatomical gift on behalf of a ward. However, a parent, agent, or guardian may not make an anatomical gift of an individual's body or body part if the individual made an unrevoked anatomical gift of his or her body or the part, except that in limited instances the parent, agent, or guardian may expand the purpose of the individual's gift.

Effect of anatomical gift or refusal made during person's lifetime. Under the bill, if a person makes an anatomical gift on behalf of an individual during the individual's lifetime, no person, other than the person who made the anatomical gift, may amend or revoke the gift after the death of the individual. However, if an anatomical gift is made by or on behalf of an unemancipated minor during the minor's lifetime, a parent may revoke or amend the gift after the death of the minor. Also under the bill, if an unemancipated minor refused to make an anatomical gift, the minor's parent may revoke the refusal after the death of the minor.

Anatomical gift on behalf of a deceased or a person near death. The bill expands the list of persons who may make an anatomical gift on behalf of a deceased to include adult grandchildren, adults who exhibited special care and concern for the deceased, and any person who has authority to dispose of the body; and the bill elevates the priority of health care agents to make anatomical gifts. Under the bill, the priority for making an anatomical gift on behalf of a deceased is as follows: 1) health care agent; 2) spouse; 3) adult child; 4) parent; 5) adult sibling; 6) adult grandchild; 7) grandparent; 8) adult who exhibited special care and concern for the deceased; 9) guardian; and 10) any other person who has authority to dispose of the body. The bill further provides that these persons may make an anatomical gift on behalf of an individual who is "near death," not just after death.

Under the bill, if there is disagreement among people who have equal priority to make an anatomical gift on behalf of a deceased or an individual who is near death, a gift may be made by a majority of the people. An anatomical gift made on behalf of a deceased or an individual who is near death may be amended by a person who has higher priority to make the gift, except that, if multiple people have the same higher priority to amend the gift, a majority is needed for amendment. An anatomical gift may be revoked by a person with higher priority to make a gift, except that, if multiple people have the same higher priority to revoke the gift, at least half must agree for the revocation to take effect. A revocation is not effective if an incision has been made in the deceased or if invasive procedures have been begun to prepare a recipient for transplant.

Method of making an anatomical gift, refusal, amendment, or revocation. The bill allows persons to authenticate records of anatomical gifts, refusals, amendments, and revocations of anatomical gifts or refusals with an electronic signature. The bill permits a person to make an anatomical gift of his or her body or body parts by affixing a symbol or statement that indicates that the person has made an anatomical gift, such as an organ donor sticker, on his or her driver's license or identification card. A person who has a terminal illness or injury may make an anatomical gift by oral communication to two adults, at least one of whom is a disinterested witness. Further, a person may make an anatomical gift of his or her body or body parts by authorizing inclusion of his or her intent to make an anatomical gift in a donor registry. Under the bill, a parent, health care agent, or guardian who has authority to make a gift on behalf of another person during the person's lifetime may do so by signing a record of gift or including the gift in a donor registry. Finally, the bill allows a person to make a gift on behalf of a deceased or an individual who is near death by means of an oral communication that is electronically recorded, or an oral communication that is contemporaneously reduced to a record that is signed by the person receiving the communication.

The bill permits additional methods of amending and revoking anatomical gifts or refusals. Under the bill a person may amend an anatomical gift or refusal by executing a subsequent gift or refusal that is inconsistent with the first. And, a person may revoke an anatomical gift or refusal that was made in a record by destroying the record, or that part of the record, in which it is made.

Procurement procedures. The bill codifies federal law requiring hospitals to enter into agreements with OPOs, tissue banks, and eye banks (procurement organizations) for the procurement and use of body parts, and requiring hospitals to notify OPOs of deaths and imminent deaths. The bill also codifies federal law regarding contacting family members of deceased persons to inform them of their options to make or refuse to make anatomical gifts.

The bill requires the Department of Transportation to provide information in its driver's license and identification card files regarding organ donor status to a procurement organization upon request. Under the bill, when a hospital notifies a procurement organization of the death or imminent death of a person, unless the person made an unrevoked refusal, the procurement organization may conduct any reasonable examination to determine whether the person's body parts are medically suitable for transplantation, therapy, research, or education, including an examination of the person's medical or dental records. The bill prohibits the withholding or withdrawing of measures to ensure the medical suitability of a body part for donation during such examination, unless the hospital or procurement organization knows that the person expressed a contrary intent. If a procurement organization determines that any of the person's body parts are medically suitable for transplantation, therapy, research, or education, the procurement organization must search for a person who has authority to make an anatomical gift of the body parts. Finally, the procurement organization must inform any person or organization who is to receive a donated body or body part of relevant information regarding the anatomical gift. A person or organization who receives a donated body or body part may conduct a reasonable examination, including an examination of the donor's medical or dental records.

Interaction between anatomical gifts and health care power of attorney or do-not-resuscitate order. The bill provides that if a person executed a health care power of attorney or a do-not-resuscitate order and the person's body parts may be the subject of an anatomical gift, measures to ensure the medical suitability of body parts for transplantation may not be withdrawn or withheld from the person unless the health care power of attorney or do-not-resuscitate order expressly provides to the contrary.

Receipt and use of donated bodies or body parts. The bill adds tissue banks and eye banks to the list or persons and organizations who may accept donated body parts and establishes rules governing who receives donated bodies and body parts. The bill provides generally, that unless an anatomical gift names a specific person or organization to receive a donated body or body part, organs, other than eyes, go to an OPO, tissues go to a tissue bank, and eyes go to an eye bank. Under the bill, if an anatomical gift of a body part is designated for a specific individual for transplantation and the body part cannot be transplanted into that individual, the body part passes to the appropriate OPO, tissue bank, or eye bank. If no recipient is named in an anatomical gift, and more than one purpose is designated, the donated body parts must be made available first for transplantation or therapy. If no recipient and no purpose are identified in an anatomical gift, or if only a general intent to make a donation is specified, for example by use of an organ donor sticker, the body parts may be used only for transplantation or therapy. A person may not accept an anatomical gift of a body or body part if the person has actual knowledge that the anatomical gift was not validly made or actual knowledge that the anatomical gift was revoked.

Immunity and liability. In addition to the civil and criminal immunity provided under current law, this bill provides that a person who acts, or attempts in good faith to act, in accordance with the anatomical gift law of this state or applicable anatomical gift law of another state or country is immune from liability for the act in administrative proceedings. The bill also provides that although emergency service and hospital personnel who are required to search for a record of an anatomical gift or refusal may not be held criminally or civilly liable for failure to search for and deliver such records, they may be subject to administrative sanctions for such a failure.

Penalty for falsifying a record of anatomical gift or refusal. The bill makes it a crime to intentionally falsify, forge, conceal, deface, or obliterate a record of an anatomical gift or refusal or an amendment or revocation of such a record. The maximum penalty for a violation is imprisonment not to exceed six years, a fine not to exceed $50,000, or both.

Validity of anatomical gifts and choice of law. The bill provides that an anatomical gift is valid in this state if it is made in accordance with the laws of this state, the laws of the state or country where it was made, or the laws of the state or country in which the person who made the gift was domiciled, had a place of residence, or was a national at the time the gift was made. Under the bill, the laws of this state apply to the interpretation of any gift that is valid in this state. The bill specifies that a person may presume that an anatomical gift or amendment is valid unless the person has actual knowledge that it was not validly made or was revoked. The bill also specifies that a person may, in determining whether an individual has authority to make an anatomical gift on behalf of a deceased or someone who is near death, rely on the representation of the individual as to his or her relation to the subject of the anatomical gift (other than as a health care agent or guardian).

Donor registry. The bill provides that the Department of Health and Family Services (DHFS) may establish a donor registry, and if it does, that the Department of Transportation must cooperate with DHFS in establishing the registry.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB570, s. 1 Section 1. 71.05 (10) (i) 1. of the statutes is amended to read:

AB570,7,2 71.05 (10) (i) 1. Subject to the conditions in this paragraph, an individual may subtract up to $10,000 from federal adjusted gross income if he or she, or his or her dependent who is claimed under section 151 (c) of the Internal Revenue Code, while living, donates one or more of his or her human organs all or part of his or her liver, pancreas, kidney, intestine, lung, or bone marrow to another human being for human organ transplantation, as defined in s. 146.345 (1), except that in this paragraph, "human organ" means all or part of a liver, pancreas, kidney, intestine, lung, or bone marrow (b). A subtract modification that is claimed under this paragraph may be claimed in the taxable year in which the human organ transplantation occurs.

AB570, s. 2 Section 2. 146.345 (title), (1) (a), (b) and (c) and (2) of the statutes are amended to read:

AB570,7,5 146.345 (title) Sale of human organs parts prohibited.

AB570,7,10 (1) (a) "Human organ" means a human kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone or skin or any other human organ specified by the department by rule. "Human organ" part" has the meaning given for "part" in s. 157.06 (2) (n), except that "human part" does not mean human whole blood, blood plasma, a blood product or a blood derivative or human semen.

AB570,7,13 (b) "Human organ transplantation" "Transplantation" means the medical procedure by which transfer of a human organ part is made from the body of a person to the body of another person.

AB570,7,18 (c) "Valuable consideration" does not include reasonable payment associated with the removal, transportation, implantation, processing, preservation, quality control or, storage, or disposal of a human organ part or an expense of travel, housing or lost wages incurred by a human organ part donor in connection with donation of the human organ part.

AB570,7,20 (2) No person may knowingly and for valuable consideration acquire, receive or otherwise transfer any human organ part for use in human organ transplantation.

AB570, s. 3 Section 3. 146.82 (2) (a) 19. of the statutes is amended to read:

AB570,7,25 146.82 (2) (a) 19. To an organ a procurement organization by a hospital pursuant to s. 157.06 (5) (b) 1, as defined in s. 157.06 (2) (p), for the purpose of conducting an examination to ensure the medical suitability of a body part that is or could be the subject of an anatomical gift under s. 157.06.

AB570, s. 4 Section 4. 155.20 (8) of the statutes is amended to read:

AB570,8,5 155.20 (8) A health care agent may make an anatomical gift under s. 157.06 (3) (a) 7. of all or a part of the principal's body after the principal's death unless the principal made an unrevoked refusal to make that anatomical gift as provided under s. 157.06 (4) (b) or (9) (a) 1.

AB570, s. 5 Section 5. 155.30 (1) (form) of the statutes is amended to read:

AB570,8,7 155.30 (1) (form)