Chapter 157

157.06(10)(a)1. 1. Signing a record of gift.

157.06(10)(a)2. 2. Subject to sub. (25m) (c), making an oral communication of an anatomical gift that is electronically recorded.

157.06(10)(a)3. 3. Subject to sub. (25m) (c), making an oral communication of an anatomical gift that is contemporaneously reduced to a record and that is signed by the individual receiving the oral communication.

157.06(10)(b) (b) A member of a class of persons that has higher priority to make an anatomical gift under sub. (9) than the person who made an anatomical gift under par. (a) and who is reasonably available may amend the anatomical gift in the manner provided in par. (d), except that if more than one member of the class with higher priority is reasonably available, the agreement of a majority of the reasonably available members is required to amend the anatomical gift.

157.06(10)(c) (c)

157.06(10)(c)1. 1. Subject to subd. 2., a member of a class of persons that has higher priority to make an anatomical gift under sub. (9) than the person who made an anatomical gift under par. (a) may revoke the anatomical gift in the manner provided in par. (d), except that if more than one member of the class with higher priority is reasonably available, the agreement of at least one-half of the reasonably available members is required to revoke the anatomical gift.

157.06(10)(c)2. 2. A revocation of an anatomical gift under subd. 1. is effective only if before an incision is made to remove a part from the donor’s body or before invasive procedures have been begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician has actual knowledge of the revocation.

157.06(10)(d) (d) A person who is authorized to amend or revoke an anatomical gift under par. (b) or (c) may do so orally or by including the amendment or revocation in a record.

157.06(11) (11) Persons that may receive anatomical gifts; purpose of gifts.

157.06(11)(a) (a) An anatomical gift may be made to any of the following persons:

157.06(11)(a)1. 1. For the purpose of research or education, a hospital, accredited medical school, dental school, college, university, organ procurement organization, or other appropriate person.

157.06(11)(a)2. 2. Subject to par. (b) 1., an individual designated by the person making the anatomical gift into which individual’s body a part is intended to be transplanted.

157.06(11)(a)3. 3. An eye bank or tissue bank.

157.06(11)(a)4. 4. An organ procurement organization, as custodian of a part for transplant or therapy.

157.06(11)(a)5. 5. A search and rescue organization or recovery team that is described in section 501 (c) (3) of the Internal Revenue Code, is exempt from federal taxation under section 501 (a) of the Internal Revenue Code, and uses human remains detection canines with the authorization of a law enforcement agency, as defined in s. 165.83 (1) (b).

157.06(11)(b) (b)

157.06(11)(b)1. 1. If a part that is the subject of an anatomical gift made to an individual under par. (a) 2. cannot be transplanted into the individual, the part passes as provided in par. (f) absent an express, contrary indication by the person making the anatomical gift.

157.06(11)(b)2. 2. If tissue that is the subject of an anatomical gift made to an organ procurement organization is unsuitable for transplantation or therapy, the organ procurement organization may give the tissue to an appropriate person for research or education if authorized to do so by the person who made the anatomical gift.

157.06(11)(c) (c) If an anatomical gift of one or more parts does not name a person under par. (a) 1. to 4. as the person to whom the anatomical gift is made, but identifies the purpose of the anatomical gift, all of the following apply:

157.06(11)(c)1. 1. If the purpose of the anatomical gift is transplantation or therapy, the part passes as provided in par. (f).

157.06(11)(c)2. 2. If the purpose of the anatomical gift is research or education, the part passes to the appropriate procurement organization.

157.06(11)(c)3. 3. If an anatomical gift is for more than one purpose, but the purposes are not set forth in any priority, the part shall be used for transplantation or therapy, if suitable, and if the part cannot be used for transplantation or therapy, may be used for research or education.

157.06(11)(d) (d) If an anatomical gift of one or more parts does not name a person under par. (a) 1. to 4. as the person to whom the anatomical gift is made and does not identify the purpose of the anatomical gift, the parts may be used only for transplantation or therapy, and the parts pass as provided in par. (f).

157.06(11)(e) (e) If an anatomical gift specifies only a general intent to make an anatomical gift by words such as “donor,” “organ donor,” or “body donor,” or by a symbol or statement of similar meaning, the anatomical gift may be used only for the purpose of transplantation or therapy, and the parts pass as provided in par. (f).

157.06(11)(f) (f) If par. (b) 1., (c) 1., (d), or (e) applies, all of the following apply:

157.06(11)(f)1. 1. If the part is an eye, the part passes to the appropriate eye bank.

157.06(11)(f)2. 2. If the part is tissue, the part passes to the appropriate tissue bank.

157.06(11)(f)3. 3. If the part is an organ, the part passes to the appropriate organ procurement organization as custodian of the organ.

157.06(11)(g) (g) If a body or part that is the subject of an anatomical gift does not pass pursuant to pars. (a) to (e) or is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person who is obligated to dispose of the body or part.

157.06(11)(h) (h) A person may not accept an anatomical gift of a decedent’s body or part if the person has actual knowledge that the anatomical gift was not made as provided in sub. (5), (6), or (10) or if the person has actual knowledge that the decedent made a refusal to make an anatomical gift under sub. (7) that was not revoked.

157.06(11)(i) (i) Except as provided under par. (a) 2., nothing in this section affects the allocation of organs for transplantation or therapy.

157.06(12) (12) Search and notification.

157.06(12)(a) (a) If any of the following persons reasonably believes an individual to be dead or near death, the person shall make a reasonable search of the individual for a record of gift or a record of refusal or other information identifying the individual as a donor or as an individual who has refused to make an anatomical gift:

157.06(12)(a)1. 1. A law enforcement officer, fire fighter, emergency medical services practitioner, emergency medical responder, or ambulance service provider.

157.06(12)(a)2. 2. If no other source of information is immediately available, a hospital, as soon as practical after the individual’s arrival at the hospital.

157.06(12)(b) (b) If a record of gift or record of refusal is located by a search under par. (a) 1., and the individual or deceased individual to whom the record or gift or record of refusal relates is taken to a hospital, the person responsible for conducting the search shall send the record of gift or record of refusal to the hospital.

157.06(12)(c) (c) A person is immune from any criminal or civil liability for failure to discharge the duties imposed under this subsection but may be subject to an administrative sanction for such failure.

157.06(13) (13) Delivery of record of gift not required; right to examine.

157.06(13)(a) (a) A record of gift need not be delivered during the donor’s lifetime to be effective.

157.06(13)(b) (b) Upon or after an individual’s death, a person who has possession of a record of gift or a record of refusal relating to the individual’s body or part shall allow any person who is authorized to revoke, make, or object to the making of an anatomical gift of the individual’s body or part, and any person to whom the body or part could pass under sub. (11), to examine and copy the record of gift or record of refusal.

157.06(14) (14) Rights and duties of procurement organization and others.

157.06(14)(a) (a) A procurement organization shall do all of the following when a hospital refers an individual who is near death or who is deceased to the procurement organization:

157.06(14)(a)1. 1. If the individual is a prospective donor, make a reasonable search for any person under sub. (9) having priority to make an anatomical gift of the individual’s body or part.

157.06(14)(a)2. 2. If the individual referred is a minor who is a donor or who made an unrevoked refusal to make an anatomical gift, unless the procurement organization has actual knowledge that the minor was emancipated, conduct a reasonable search for the parents of the minor and provide the parents an opportunity to revoke or amend the anatomical gift or refusal relating to the minor.

157.06(14)(a)3. 3. If the procurement organization receives information about an anatomical gift of the individual’s body or part that under sub. (11) passes to a person other than the procurement organization, promptly advise the other person of relevant information regarding the anatomical gift.

157.06(14)(a)4. 4. If procurement organization personnel make a request of a family member of a potential donor to make an anatomical gift of organs, tissues, or eyes, ensure that the personnel make the request with discretion and sensibility with respect to the circumstances, views, and beliefs of the family of the potential donor.

157.06(14)(b) (b) When a hospital refers an individual at or near death to a procurement organization, the procurement organization may conduct any reasonable examination to determine whether a part of the individual that is or could be the subject of an anatomical gift is medically suitable for transplantation, therapy, research, or education. Unless otherwise prohibited by law, an examination under this paragraph may include an examination of all of the individual’s medical or dental records. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization has actual knowledge that the individual expressed a contrary intent.

157.06(14)(c) (c) Unless otherwise prohibited by law, at any time after a donor’s death, the person to whom the donor’s body or part passes under sub. (11) may conduct any reasonable examination, including an examination of all of the donor’s medical or dental records, to determine the medical suitability of the donor’s body or part for its intended purpose.

157.06(14)(d) (d) Subject to subs. (11) (g), (22m), and (23m), the rights of the person to whom an anatomical gift of a part passes under sub. (11) are superior to the rights of all others with respect to a part. The person may accept or reject an anatomical gift in whole or in part. A person who accepts an anatomical gift of a part shall cause the part to be removed from the donor’s body after the death of the donor and before embalming, burial, or cremation and without unnecessary mutilation.

157.06(14)(e) (e) A person who accepts an anatomical gift of an entire body may, subject to the terms of an anatomical gift and this section, allow embalming, burial, cremation, or use of the remains of the body in a funeral service.

157.06(14)(f) (f) A physician who attends a decedent at death or determines the time of death may not participate in the procedures for removing or transplanting a part from the decedent.

157.06(14)(g) (g) A physician or technician may remove from the body of a donor a donated part that the physician or technician is qualified to remove.

157.06(14m) (14m) Coordination of procurement and use; duties of hospitals. Each hospital shall do all of the following:

157.06(14m)(a) (a) Enter into agreements or affiliations with procurement organizations for coordination of procurement and use of bodies and parts that are the subject of anatomical gifts, including the following:

157.06(14m)(a)1. 1. An agreement with an organ procurement organization to notify the organ procurement organization or its designee in a timely manner of individuals whose death is imminent or who have died in the hospital.

157.06(14m)(a)2. 2. Agreements with at least one tissue bank and at least one eye bank to cooperate in the retrieval, processing, preservation, storage, and distribution of tissues and eyes to assure that all usable tissues and eyes are obtained from potential donors, as long as such agreements do not interfere with the procurement of organs.

157.06(14m)(b) (b) Ensure, in collaboration with the organ procurement organization with which the hospital has an agreement under par. (a) 1. that the family of each potential donor is informed of its options to donate organs, tissues, or eyes or to refuse to donate organs, tissues, or eyes.

157.06(14m)(c) (c) Ensure that the individual who requests family members of potential donors to make anatomical gifts of organs, tissues, or eyes is either an organ procurement representative or has completed a course on the methodology for approaching persons to request that they make anatomical gifts, which course is designed in conjunction with the tissue and eye bank community and offered or approved by the organ procurement organization with which the hospital has an agreement under par. (a) 1.

157.06(14m)(d) (d) Ensure that hospital personnel who make requests of family members of potential donors to make anatomical gifts of organs, tissues, or eyes make the requests with discretion and sensibility with respect to the circumstances, views, and beliefs of the families of potential donors.

157.06(14m)(e) (e) Ensure that the hospital works cooperatively with the procurement organizations with which it has agreements under par. (a) in educating staff on donation issues, reviewing death records to improve identification of potential donors, and maintaining potential donors while necessary testing and placement of potential donated organs, tissues, and eyes takes place.

157.06(15) (15) Discrimination in use of anatomical gifts prohibited.

157.06(15)(a) (a) Except as provided in pars. (c) and (d), no hospital or transplant hospital may, solely on the basis of an individual’s disability, do any of the following:

157.06(15)(a)1. 1. Consider an individual ineligible to receive an anatomical gift.

157.06(15)(a)2. 2. Deny an individual any medical services or other services related to organ transplantation, including diagnostic services, surgery, postoperative treatment, and counseling.

157.06(15)(a)3. 3. Refuse to refer an individual to a transplant hospital or an organ transplant specialist for the purpose of being evaluated for or receiving an anatomical gift.

157.06(15)(a)4. 4. Refuse to place the individual on an organ transplant waiting list.

157.06(15)(a)5. 5. Place the individual on an organ transplant waiting list at a lower priority position than the position at which the individual would have been placed if the individual did not have a disability, unless the individual is placed at a lower priority position because the individual’s disability relates directly to the medical need of the individual to receive the organ transplant and the individual’s relative placement on the waiting list is reflective of the individual’s medical need for the organ transplant.

157.06(15)(b) (b) No person may refuse an individual insurance coverage for any procedure associated with being evaluated for or receiving an anatomical gift, including posttransplantation and posttransfusion care, solely on the basis of the individual’s physical or mental disability.

157.06(15)(c) (c)

157.06(15)(c)1. 1. A hospital or transplant hospital may consider an individual’s disability when making treatment or coverage decisions or recommendations related to organ transplantation, but only if a physician finds that the disability is medically significant to the receipt of the anatomical gift following an individualized evaluation of the individual.

157.06(15)(c)2. 2. If the examining physician determines that the individual has the necessary support system to assist the individual in complying with posttransplantation medical requirements, an individual’s inability to independently comply with those requirements may not be considered to be medically significant for purposes of subd. 1.

157.06(15)(d) (d) This subsection does not apply to eye transplants or services related to the provision of an eye transplant.

157.06(15)(e) (e) An individual may bring an action for a violation of this subsection in the circuit court of the county where a violation occurs or the county where the individual resides. The circuit court shall give priority on its docket and expedited review to an action brought under this paragraph. The court shall hold a hearing within 30 days of the filing of the action. In an action brought under this paragraph, the court may grant injunctive or other equitable relief, including requiring that auxiliary aids and services be made available for the individual if and when necessary for the receipt of an organ transplant. In issuing any order for auxiliary aids and services under this subsection, the circuit court shall specify the party responsible for paying for the auxiliary aids and services and for how long the services are to be provided.

157.06(17) (17) Prohibited acts related to records. Any person who intentionally falsifies, forges, conceals, defaces, or obliterates a record of gift, an amendment or revocation of a record of gift, or a record of refusal for pecuniary gain is guilty of a Class H felony, except that notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $50,000.

157.06(18) (18) Immunity.

157.06(18)(a) (a) A person who acts, or in good faith attempts to act, in accordance with this section or with the applicable anatomical gift law of another state is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.

157.06(18)(b) (b) A person who makes an anatomical gift and the person’s estate are not liable for any injury or damage that results from the making of the anatomical gift or the use of the body or any part that is the subject of the anatomical gift.

157.06(18)(c) (c) A person may rely on a representation made by an individual purporting to be an individual listed under sub. (9) (a) 2., 3., 4., 5., 6., 7., or 8. as to the individual’s relation to a donor or prospective donor in determining whether an anatomical gift of the donor’s or prospective donor’s body or part has been made, amended, or revoked.

157.06(19) (19) Law governing validity; choice of law as to making of anatomical gift; presumption of validity.

157.06(19)(a) (a) An anatomical gift is valid if made in accordance with any of the following:

157.06(19)(a)1. 1. This section.

157.06(19)(a)2. 2. The laws of the state or country where it was made.

157.06(19)(a)3. 3. The laws of the state or country where the individual making the anatomical gift was domiciled, had a place of residence, or was a national at the time the anatomical gift was made.

157.06(19)(b) (b) If an anatomical gift is valid under this subsection, the law of this state governs the interpretation of the anatomical gift.

157.06(19)(c) (c) A person may presume that an anatomical gift or an amendment of an anatomical gift is valid unless the person has actual knowledge that it was not validly made or was revoked.

157.06(20) (20) Donor Registry. The department of health services may establish a donor registry. If the department of health services establishes a donor registry under this subsection, the department of transportation, department of natural resources, and department of revenue shall cooperate with the department of health services in establishing the donor registry. The department of health services shall promulgate administrative rules governing any donor registry established under this subsection.

157.06(21) (21) Effect of anatomical gift on advance health care directive. If a prospective donor executed a declaration, as defined in s. 154.02 (1), or a power of attorney for health care instrument under ch. 155, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor unless the declaration or power of attorney for health care instrument expressly provides to the contrary.

157.06(22m) (22m) Authorization by coroner or medical examiner; no evidence of anatomical gift.

157.06(22m)(ag) (ag) If a decedent is within the custody of a coroner or medical examiner and if there is no evidence that an anatomical gift of the decedent’s body or part has been made or that the decedent has refused to make an anatomical gift, the coroner or medical examiner shall contact by telephone the organ procurement organization designated for the region in which the death occurs. The coroner or medical examiner shall provide the organ procurement organization with information, if known to the coroner or medical examiner, concerning the decedent’s age, the cause of the decedent’s death and, if available, the decedent’s medical history.