Revocation of Anatomical Gift Donation
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE MASSACHUSETTS GENERAL LAWS
ANATOMICAL GIFTS
(Chapter 113A )
Section 4. Subject to section 8, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research or education in the manner provided in section 5 by:
(1) the donor, if the donor is an adult or if the donor is a minor and is:
(i) emancipated; or
(ii) authorized under state law to apply for a driver's license or identification card;
(2) an agent of the donor including, but not limited to, a health care agent appointed under a health care proxy pursuant to chapter 201D, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift;
(3) a parent of the donor, if the donor is an unemancipated minor; or
(4) the donor's guardian.
Section 6. (a) Subject to section 8, a donor or other individual authorized to make an anatomical gift under section 4 may amend or revoke an anatomical gift by:
(1) a record signed by:
(i) the donor;
(ii) the other individual; or
(iii) subject to subsection (b), another individual acting at the direction of the donor or other individual if such donor or other individual is physically unable to sign; or
(2) a later-executed document of gift that amends or revokes a previous document of gift or portion of a document of gift, either expressly or by inconsistency.
(b) A record signed pursuant to subclause (iii) of clause (1) of subsection (a) shall:
(1) be witnessed by at least 2 adults, at least 1 of whom shall be a disinterested witness, who have signed at the request of the donor or other individual; and
(2) state that it has been signed and witnessed as provided in clause (1).
(c) Subject to section 8, a donor or other individual authorized to make an anatomical gift under section 4 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.
(d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least 2 adults, at least 1 of whom shall be a disinterested witness.
(e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a).
Section 9. (a) Subject to subsections (b) and (c) and unless otherwise prohibited by section 7 or 8, an anatomical gift of a decedent's body or part for transplantation, therapy, research or education may be made by any member of any of the following classes of individuals who is reasonably available, in the order of priority as specified below:
(1) an agent of the decedent at the time of death who could have made an anatomical gift under clause (2) of section 4 immediately before the decedent's death;
(2) the spouse of the decedent;
(3) an adult child of the decedent;
(4) a parent of the decedent;
(5) an adult sibling of the decedent;
(6) an adult grandchild of the decedent;
(7) a grandparent of the decedent;
(8) an adult who exhibited special care and concern for the decedent;
(9) a person who was acting as a guardian of the person of the decedent at the time of death; and
(10) any other person having the authority to dispose of the decedent's body.
(b) If there is more than 1 member of a class listed in clause (1), (3), (4), (5), (6), (7), (9) or (10) of subsection (a) who is entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to whom the gift may pass under section 11 knows of an objection by another member of the class. If an objection is known, the gift shall be made by a majority of the members of the class who are reasonably available.
(c) An individual shall not make an anatomical gift if, at the time of the decedent's death, an individual in a prior class under subsection (a) is reasonably available to make or object to the making of an anatomical gift.
Section 11. (a) An anatomical gift may be made to the following persons named in the document of gift:
(1) a hospital, accredited medical school, dental school, college or university, organ procurement organization or other appropriate person, for research or education;
(2) subject to subsection (b), an individual designated by the person making the anatomical gift if the individual is designated as the recipient of the part;
(3) an eye bank or tissue bank.
(b) If an anatomical gift to an individual under clause (2) of subsection (a) cannot be transplanted into the individual, the part shall pass in accordance with subsection (g) in the absence of an express, contrary indication by the person making the anatomical gift.
(c) If an anatomical gift of 1 or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules shall apply:
(1) if the part is an eye and the gift is for transplantation or therapy, the gift shall pass to the appropriate eye bank;
(2) if the part is tissue and the gift is for transplantation or therapy, the gift shall pass to the appropriate tissue bank;
(3) if the part is an organ and the gift is for transplantation or therapy, the gift shall pass to the appropriate organ procurement organization as custodian of the organ; and
(4) if the part is an organ, an eye, or tissue and the gift is for research or education, the gift shall pass to the appropriate procurement organization.
(d) For the purpose of subsection (c), if there is more than 1 purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, then the gift shall be used for transplantation or therapy, if suitable for such purposes. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.
(e) If an anatomical gift of 1 or more specific parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the gift shall pass in accordance with subsection (g) and the parts shall be used for transplantation or therapy if suitable but, if not suitable for those purposes, the parts may be used for research or education.
(f) If a document of gift specifies only a general intent to make an anatomical gift by words such as ''donor'', ''organ donor'', ''body donor'' or by a symbol or statement of similar import, the gift shall pass in accordance with subsection (g) and the parts shall be used for transplantation or therapy if suitable but, if not suitable for those purposes, the parts may be used for research or education.
(g) For the purposes of subsections (b), (e) and (f), the following rules shall apply:
(1) if the part is an eye, the gift shall pass to the appropriate eye bank;
(2) if the part is tissue, then the gift shall pass to the appropriate tissue bank;
(3) if the part is an organ, the gift shall pass to the appropriate organ procurement organization as custodian of the organ.
(h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under clause (2) of subsection (a), shall pass to the organ procurement organization as custodian of the organ.
(i) If an anatomical gift does not pass pursuant to subsections (a) to (h), inclusive, or the decedent's body or part is not used for transplantation, therapy, research or education, custody of the body or part shall pass to the person under obligation to dispose of the body or part.
(j) A person shall not accept an anatomical gift if the person knows that the gift was not effectively made under section 5 or 10 or if the person knows that the decedent made a refusal under section 7 that was not revoked. For the purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, that person shall be deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.
(k) Except as otherwise provided in clause (2) of subsection (a), nothing in this act shall affect the allocation of organs for transplantation or therapy.
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