Chapter 6.B.1 (or 4.B.1) Mandates or Incentives for Organ Donation
This page has notes for Obligations to Give Up Organs and Tissues; Autopsies, Note 3, Note 4, and Note 5.
For background to California's amendment of its cornea removal statute in 1998, see the Senate committee report.
Here is a link to the Revised Uniform Anatomical Gift Act (2006). The Act also expands the list of persons who may consent to organ donation after a person’s death to include adult grandchildren, adults who “exhibited special care and concern for the decedent,” and health care agents. Rev. Unif. Anatomical Gift Act §9(a).
Through September 29, 2009, the Revised Uniform Anatomical Gift Act had been adopted in California, Ohio, Texas, 35 other states and the District of Columbia. For updates on the enactment status, click here.
As Powell and Brotherton indicate, a decedent's corneas or other tissues cannot be taken over the known objection of the decedent or the decedent's family. In accordance with this principle, a North Carolina court of appeals reversed a summary judgment in favor of the hospital when a decedent's eyes were removed during an autopsy, and the family had authorized the autopsy but (according to the allegations) had expressly stated their opposition to having any organs or tissues removed from the body. Massey v. Duke University, 503 S.E.2d 155 (N.C. App. 1998).
The Ninth Circuit decided a case in which a family sued a hospital and transplant donor network over their removal of a decedent's heart, liver, kidney and pancreas without the family's permission. The decedent was found on the side of the road in California after suffering severe head trauma, and he was misidentified as a resident of New York. When law enforcement officials were unable to locate family members during a 40 hour search, they released the body for organ retrieval. It turned out that the decedent was a tourist from Denmark, and his family brought their claims. The court found for the hospital and transplant donor network, holding that the coroner, rather than the hospital or donor network, had the duty to the family to make a reasonable effort to locate them. (The coroner had been dismissed from the case because the claim against the coroner was not filed in accordance with the requirements of the California Tort Claims Act for money damages from local public entities.) Jacobsen v. Marin General Hospital, 192 F.3d 881 (9th Cir. 1999).
For an argument that presumed consent has been tried and failed in the United States, see David Orentlicher, "Presumed Consent to Organ Donation: Its Rise and Fall in the United States," 61 Rutgers Law Review 295 (2009).
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