AB570: Bill Text

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)

AB570,8,8 "NOTICE TO PERSON

AB570,8,9 MAKING THIS DOCUMENT

AB570,8,13 YOU HAVE THE RIGHT TO MAKE DECISIONS ABOUT YOUR HEALTH CARE. NO HEALTH CARE MAY BE GIVEN TO YOU OVER YOUR OBJECTION, AND NECESSARY HEALTH CARE MAY NOT BE STOPPED OR WITHHELD IF YOU OBJECT.

AB570,8,19 BECAUSE YOUR HEALTH CARE PROVIDERS IN SOME CASES MAY NOT HAVE HAD THE OPPORTUNITY TO ESTABLISH A LONG-TERM RELATIONSHIP WITH YOU, THEY ARE OFTEN UNFAMILIAR WITH YOUR BELIEFS AND VALUES AND THE DETAILS OF YOUR FAMILY RELATIONSHIPS. THIS POSES A PROBLEM IF YOU BECOME PHYSICALLY OR MENTALLY UNABLE TO MAKE DECISIONS ABOUT YOUR HEALTH CARE.

AB570,9,7 IN ORDER TO AVOID THIS PROBLEM, YOU MAY SIGN THIS LEGAL DOCUMENT TO SPECIFY THE PERSON WHOM YOU WANT TO MAKE HEALTH CARE DECISIONS FOR YOU IF YOU ARE UNABLE TO MAKE THOSE DECISIONS PERSONALLY. THAT PERSON IS KNOWN AS YOUR HEALTH CARE AGENT. YOU SHOULD TAKE SOME TIME TO DISCUSS YOUR THOUGHTS AND BELIEFS ABOUT MEDICAL TREATMENT WITH THE PERSON OR PERSONS WHOM YOU HAVE SPECIFIED. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF HEALTH CARE THAT YOU DO OR DO NOT DESIRE, AND YOU MAY LIMIT THE AUTHORITY OF YOUR HEALTH CARE AGENT. IF YOUR HEALTH CARE AGENT IS UNAWARE OF YOUR DESIRES WITH RESPECT TO A PARTICULAR HEALTH CARE DECISION, HE OR SHE IS REQUIRED TO DETERMINE WHAT WOULD BE IN YOUR BEST INTERESTS IN MAKING THE DECISION.

AB570,9,20 THIS IS AN IMPORTANT LEGAL DOCUMENT. IT GIVES YOUR AGENT BROAD POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU. IT REVOKES ANY PRIOR POWER OF ATTORNEY FOR HEALTH CARE THAT YOU MAY HAVE MADE. IF YOU WISH TO CHANGE YOUR POWER OF ATTORNEY FOR HEALTH CARE, YOU MAY REVOKE THIS DOCUMENT AT ANY TIME BY DESTROYING IT, BY DIRECTING ANOTHER PERSON TO DESTROY IT IN YOUR PRESENCE, BY SIGNING A WRITTEN AND DATED STATEMENT OR BY STATING THAT IT IS REVOKED IN THE PRESENCE OF TWO WITNESSES. IF YOU REVOKE, YOU SHOULD NOTIFY YOUR AGENT, YOUR HEALTH CARE PROVIDERS AND ANY OTHER PERSON TO WHOM YOU HAVE GIVEN A COPY. IF YOUR AGENT IS YOUR SPOUSE AND YOUR MARRIAGE IS ANNULLED OR YOU ARE DIVORCED AFTER SIGNING THIS DOCUMENT, THE DOCUMENT IS INVALID.

AB570,9,25 YOU MAY ALSO USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT UPON YOUR DEATH. IF YOU USE THIS DOCUMENT TO MAKE OR REFUSE TO MAKE AN ANATOMICAL GIFT, THIS DOCUMENT REVOKES ANY PRIOR DOCUMENT RECORD OF GIFT THAT YOU MAY HAVE MADE. YOU MAY REVOKE OR CHANGE ANY ANATOMICAL GIFT THAT YOU MAKE BY THIS DOCUMENT BY CROSSING OUT THE ANATOMICAL GIFTS PROVISION IN THIS DOCUMENT.

AB570,10,4 DO NOT SIGN THIS DOCUMENT UNLESS YOU CLEARLY UNDERSTAND IT.

AB570,10,6 IT IS SUGGESTED THAT YOU KEEP THE ORIGINAL OF THIS DOCUMENT ON FILE WITH YOUR PHYSICIAN."

AB570, s. 6 Section 6. 157.06 of the statutes is repealed and recreated to read:

AB570,10,8 157.06 Anatomical gifts. (2) Definitions. In this section:

AB570,10,11 (a) "Agent" means a health care agent, as defined in s. 155.01 (4), or an individual who is expressly authorized in a record that is signed by a principal to make an anatomical gift of the principal's body or part.

AB570,10,14 (b) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.

AB570,10,15 (c) "Decedent" means a deceased individual.

AB570,10,16 (d) "Disinterested witness" means a witness who is not any of the following:

AB570,10,18 1. The spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift.

AB570,10,21 2. A person who exhibits special care and concern, except as a compensated health care provider, for the individual who makes, amends, revokes, or refuses to make an anatomical gift.

AB570,10,22 3. Any other person to whom the anatomical gift could pass under sub. (11).

AB570,10,24 (e) "Donor" means an individual whose body or part is the subject of an anatomical gift.

AB570,11,2 (f) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.

AB570,11,5 (g) "Driver's license" means a license or permit to operate a vehicle, whether or not conditions are attached to the license or permit, that is issued by the department of transportation under ch. 343.

AB570,11,8 (h) "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.

AB570,11,11 (i) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual, and does not include a guardian ad litem.

AB570,11,14 (j) "Hospital" means a facility approved as a hospital under s. 50.35 or a facility operated as a hospital by the federal government, a state, or a political subdivision of a state.

AB570,11,16 (k) "Identification card" means an identification card issued by the department of transportation under s. 343.50.

AB570,11,19 (L) "Organ procurement organization" means a person designated by the Secretary of the U.S. Department of Health and Human Services as an organ procurement organization.

AB570,11,20 (m) "Parent" has the meaning given under s. 48.02 (13).

AB570,11,22 (n) "Part" means a vascularized organ, eye, or tissue of a human being. "Part" does not mean a whole human body.

AB570,11,24 (o) "Physician" means an individual authorized to practice medicine or osteopathy under the laws of any state.

AB570,12,2 (p) "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.

AB570,12,7 (q) "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. An individual who has refused to make an anatomical gift as provided under sub. (7) is not a prospective donor.

AB570,12,11 (r) "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.

AB570,12,13 (s) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.

AB570,12,16 (t) "Record of gift" means a donor card or other record used to make an anatomical gift, including a statement or symbol on a driver's license or identification card or in a donor registry.

AB570,12,19 (u) "Record of refusal" means a record created under sub. (7) that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.

AB570,12,21 (v) "Sign" means to do any of the following with present intent to authenticate or adopt a record:

AB570,12,22 1. Execute or adopt a signature or tangible symbol.

AB570,12,24 2. Attach to or logically associate with the record an electronic symbol, sound, or process.

AB570,13,3 (w) "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law and includes an enucleator.

AB570,13,6 (x) "Tissue" means a portion of the human body other than a vascularized organ or eye and does not include blood unless the blood is donated for the purpose of research or education.

AB570,13,9 (y) "Tissue 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 tissue.

AB570,13,12 (z) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.

AB570,13,15 (zm) "Vascularized organ" means a heart, lung, liver, pancreas, kidney, intestine, or other organ that requires the continuous circulation of blood to remain useful for purposes of transplantation.

AB570,13,20 (2m) Signing for a person who is physically unable. If an individual who is physically unable to sign a record under sub. (5) (a) 4. or (b) 1., (6) (a) 1., (b) 1., (c) 1., or (d) 1., or (7) (a) 1. or (b) 1. directs another to sign the record on his or her behalf, the signature of the other individual authenticates the record as long as all of the following conditions are satisfied:

AB570,13,22 (a) The signature of the other individual is witnessed by at least two adults, at least one of whom is a disinterested witness.

AB570,13,24 (b) The witnesses sign the record at the request of the individual who is physically unable to sign.

AB570,14,2 (c) The record includes a statement that it was signed and witnessed at the request of the individual who is physically unable to sign.

AB570,14,5 (4) Who may make an anatomical gift before donor's death. Except as provided in subs. (7) and (8), any of the following may during the life of a donor make an anatomical gift of the donor's body or part in the manner provided in sub. (5):

AB570,14,7 (a) The donor, if he or she is at least 15 and one-half years of age or is an emancipated minor.

AB570,14,10 (b) An agent of the donor, unless the donor's power of attorney for health care instrument under ch. 155 or some other record prohibits the agent from making an anatomical gift.

AB570,14,12 (c) A parent of the donor, if the donor is an unemancipated minor and does not object to the making of the anatomical gift.