08 SB405/CSFA/2
Senate
Bill 405
By:
Senators Balfour of the 9th, Douglas of the 17th, Murphy of the 27th, Cowsert of
the 46th, Hawkins of the 49th and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 5 of Title 44 of the Official Code of Georgia Annotated, relating
to acquisition and loss of property, so as to provide for the enactment of the
"Georgia Revised Uniform Anatomical Gift Act"; to repeal the "Georgia Anatomical
Gift Act"; to provide for a short title; to provide for definitions; to provide
for anatomical gifts; to provide for who may make an anatomical gift; to provide
for the manner of making, amending, or revoking an anatomical gift; to provide
for refusal to make an anatomical gift; to provide for effectiveness; to provide
for search and notification; to provide for delivery of document; to provide for
rights and duties of procurement organizations; to provide for coordination of
procurement and use; to prohibit the sale or purchase of body parts; to provide
for penalties; to provide for immunity; to provide for governing law; to provide
for a donor registry; to provide for the effect of an anatomical gift on an
advance directive for health care; to provide for cooperation between medical
examiners and procurement organizations; to provide for facilitation of an
anatomical gift from a decedent; to provide for applicability and statutory
construction; to amend Article 6 of Chapter 12 of Title 16 of the Official Code
of Georgia Annotated, relating to crimes and offenses relative to human body
trafficking, so as to revise certain provisions relating to buying and selling
the human body or parts; to amend Chapter 23 of Title 31 of the Official Code of
Georgia Annotated, relating to eye banks, so as to repeal a provision relating
to removal of eye or corneal tissue by a coroner, medical examiner, or other
individual; to amend the Official Code of Georgia Annotated, so as to revise
various provisions for purposes of conformity; to provide for related matters;
to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
5 of Title 44 of the Official Code of Georgia Annotated, relating to acquisition
and loss of property, is amended by repealing Article 6, known as the "Georgia
Anatomical Gift Act," and inserting in its place a new Article 6 to read as
follows:
"ARTICLE
6
44-5-140.
This
article shall be known and may be cited as the 'Georgia Revised Uniform
Anatomical Gift Act.'
44-5-141.
As
used in this article, the term:
(1)
'Adult' means an individual who is at least 18 years of age.
(2)
'Agent' means an individual:
(A)
Authorized to make health care decisions on the principal´s behalf by an
advance directive for health care or a durable power of attorney for health
care; or
(B)
Expressly authorized to make an anatomical gift on the principal´s behalf
by any other record signed by the principal.
(3)
'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.
(4)
'Decedent' means a deceased individual whose body or part is or may be the
source of an anatomical gift. The term includes a stillborn infant and a
fetus.
(5)
'Disinterested witness' means a witness other than the spouse, child, parent,
sibling, grandchild, grandparent, or guardian of the individual who makes,
amends, revokes, or refuses to make an anatomical gift. The term does not
include a person to which an anatomical gift could pass under Code Section
44-5-149.
(6)
'Document of gift' means a donor card or other record used to make an anatomical
gift. The term includes a statement or symbol on a driver´s license,
identification card, or donor registry.
(7)
'Donor' means an individual whose body or part is the subject of an anatomical
gift.
(8)
'Donor registry' means a data base that contains records of anatomical gifts and
amendments to or revocations of anatomical gifts.
(9)
'Driver´s license' means a license or permit issued by the Department of
Driver Services to operate a vehicle, whether or not conditions are attached to
the license or permit.
(10)
'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.
(11)
'Guardian' means a person appointed by a court to make decisions regarding the
support, care, education, health, or welfare of an individual. The term does
not include a guardian ad litem.
(12)
'Hospital' means a facility licensed as a hospital under the law of any state or
a facility operated as a hospital by the United States, a state, or a
subdivision of a state.
(13)
'Identification card' means an identification card for persons without
drivers´ licenses issued pursuant to Code Sections 40-5-100 through
40-5-104 by the Department of Driver Services.
(14)
'Know' means to have actual knowledge.
(15)
'Minor' means an individual who is under 18 years of age.
(16)
'Organ procurement organization' means a person designated by the Secretary of
the United States Department of Health and Human Services as an organ
procurement organization.
(17)
'Parent' means a parent whose parental rights have not been
terminated.
(18)
'Part' means an organ, an eye, or tissue of a human being. The term does not
include the whole body.
(19)
'Person' means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, public
corporation, government or governmental subdivision, agency, or instrumentality,
or any other legal or commercial entity.
(20)
'Physician' means an individual authorized to practice medicine or osteopathy
under the law of any state.
(21)
'Procurement organization' means an eye bank, organ procurement organization, or
tissue bank.
(22)
'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. The term does
not include an individual who has made a refusal.
(23)
'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.
(24)
'Recipient' means an individual into whose body a decedent´s part has been
or is intended to be transplanted.
(25)
'Record' means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable
form.
(26)
'Refusal' means a record created under Code Section 44-5-145 that expressly
states an intent to bar other persons from making an anatomical gift of an
individual´s body or part.
(27)
'Sign' means, with the present intent to authenticate or adopt a
record:
(A)
To execute or adopt a tangible symbol; or
(B)
To attach to or logically associate with the record an electronic symbol, sound,
or process.
(28)
'State' means a state of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
(29)
'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. The term includes an individual who is authorized
to remove eyes, known as an enucleator.
(30)
'Tissue' means a portion of the human body other than an organ or an eye. The
term does not include blood unless the blood is donated for the purpose of
research or education.
(31)
'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.
(32)
'Transplant hospital' means a hospital that furnishes organ transplants and
other medical and surgical specialty services required for the care of
transplant patients.
44-5-142.
Subject
to Code Section 44-5-146, 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 Code Section 44-5-143
by:
(1)
The donor, if the donor is an adult or if the donor is a minor and
is:
(A)
Emancipated; or
(B)
Authorized under state law to apply for a driver´s license because the
donor is at least 16 years of age;
(2)
An agent of the donor, unless the advance directive for health care or durable
power of attorney for health care 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.
44-5-143.
(a)
A donor may make an anatomical gift:
(1)
By authorizing a statement or symbol indicating that the donor has made an
anatomical gift to be imprinted on the donor´s driver´s license or
identification card;
(2)
In a will;
(3)
During a terminal illness or injury of the donor, by any form of communication
addressed to at least two adults, at least one of whom is a disinterested
witness; or
(4)
By granting power pursuant to a durable power of attorney for health care or
advance directive for health care under Chapter 32 of Title 31.
(5)
As provided in subsection (b) of this Code section.
(b)
A donor or other person authorized to make an anatomical gift under Code Section
44-5-142 may make a gift by a donor card or other record signed by the donor or
other person making the gift or by authorizing that a statement or symbol
indicating that the donor has made an anatomical gift be included on a donor
registry. If the donor or other person is physically unable to sign a record,
the record may be signed by another individual at the direction of the donor or
other person and shall:
(1)
Be witnessed by at least two adults, at least one of whom is a disinterested
witness, who have signed at the request of the donor or the other person; and
(2)
State that it has been signed and witnessed as provided in paragraph (1) of this
subsection.
(c)
Revocation, suspension, expiration, or cancellation of a driver´s license
or identification card upon which an anatomical gift is indicated does not
invalidate the gift.
(d)
An anatomical gift made by will takes effect upon the donor´s death whether
or not the will is probated. Invalidation of the will after the donor´s
death does not invalidate the gift.
44-5-144.
(a)
Subject to Code Section 44-5-146, a donor or other person authorized to make an
anatomical gift under Code Section 44-5-142 may amend or revoke an anatomical
gift by:
(1)
A record signed by:
(A)
The donor;
(B)
The other person; or
(C)
Subject to subsection (b) of this Code section, another individual acting at the
direction of the donor or the other person if the donor or other person is
physically unable to sign; or
(2)
A later-executed document of gift that amends or revokes a previous anatomical
gift or portion of an anatomical gift, either expressly or by
inconsistency.
(b)
A record signed pursuant to subparagraph (a)(1)(C) of this Code section
shall:
(1)
Be witnessed by at least two adults, at least one of whom is a disinterested
witness, who have signed at the request of the donor or the other person;
and
(2)
State that it has been signed and witnessed as provided in paragraph (1) of this
subsection.
(c)
Subject to Code Section 44-5-146, a donor or other person authorized to make an
anatomical gift under Code Section 44-5-142 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 two adults, at least one of whom is 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 under Chapter 4 of
Title 53 or as provided in subsection (a) of this Code section.
44-5-145.
(a)
An individual may refuse to make an anatomical gift of the individual´s
body or part by:
(1)
A record signed by:
(A)
The individual; or
(B)
Subject to subsection (b) of this Code section, another individual acting at the
direction of the individual if the individual is physically unable to
sign;
(2)
The individual´s will, whether or not the will is admitted to probate or
invalidated after the individual´s death; or
(3)
Any form of communication made by the individual during the individual´s
terminal illness or injury addressed to at least two adults, at least one of
whom is a disinterested witness.
(b)
A record signed pursuant to subparagraph (a)(1)(B) of this Code section
shall:
(1)
Be witnessed by at least two adults, at least one of whom is a disinterested
witness, who have signed at the request of the individual; and
(2)
State that it has been signed and witnessed as provided in paragraph (1) of this
subsection.
(c)
An individual who has made a refusal may amend or revoke the
refusal:
(1)
In the manner provided in subsection (a) of this Code section for making a
refusal;
(2)
By subsequently making an anatomical gift pursuant to Code Section 44-5-143 that
is inconsistent with the refusal; or
(3)
By destroying or canceling the record evidencing the refusal, or the portion of
the record used to make the refusal, with the intent to revoke the
refusal.
(d)
Except as otherwise provided in subsection (h) of Code Section 44-5-146, in the
absence of an express, contrary indication by the individual set forth in the
refusal, an individual´s unrevoked refusal to make an anatomical gift of
the individual´s body or part bars all other persons from making an
anatomical gift of the individual´s body or part.
44-5-146.
(a)
Except as otherwise provided in subsection (g) of this Code section and subject
to subsection (f) of this Code section, in the absence of an express, contrary
indication by the donor, a person other than the donor is barred from making,
amending, or revoking an anatomical gift of a donor´s body or part if the
donor made an anatomical gift of the donor´s body or part under Code
Section 44-5-143 or an amendment to an anatomical gift of the donor´s body
or part under Code Section 44-5-144.
(b)
A donor´s revocation of an anatomical gift of the donor´s body or part
under Code Section 44-5-144 is not a refusal and does not bar another person
specified in Code Sections 44-5-142 and 44-5-147 from making an anatomical gift
of the donor´s body or part under Code Section 44-5-143 or
44-5-148.
(c)
If a person other than the donor makes an unrevoked anatomical gift of the
donor´s body or part under Code Section 44-5-143 or an amendment to an
anatomical gift of the donor´s body or part under Code Section 44-5-144,
another person may not make, amend, or revoke the gift of the donor´s body
or part under Code Section 44-5-148.
(d)
A revocation of an anatomical gift of a donor´s body or part under Code
Section 44-5-144 by a person other than the donor does not bar another person
from making an anatomical gift of the body or part under Code Section 44-5-143
or 44-5-148.
(e)
In the absence of an express, contrary indication by the donor or other person
authorized to make an anatomical gift under Code Section 44-5-142, an anatomical
gift of a part is neither a refusal to give another part nor a limitation on the
making of an anatomical gift of another part at a later time by the donor or
another person.
(f)
In the absence of an express, contrary indication by the donor or other person
authorized to make an anatomical gift under Code Section 44-5-142, an anatomical
gift of a part for one or more of the purposes set forth in Code Section
44-5-142 is not a limitation on the making of an anatomical gift of the part for
any of the other purposes by the donor or any other person under Code Section
44-5-143 or 44-5-148.
(g)
If a donor who is an unemancipated minor dies, a parent of the donor who is
reasonably available may revoke or amend an anatomical gift of the donor´s
body or part.
(h)
If an unemancipated minor who signed a refusal dies, a parent of the minor who
is reasonably available may revoke the minor´s refusal.
44-5-147.
(a)
Subject to subsections (b) and (c) of this Code section and unless barred by
Code Section 44-5-145 or 44-5-146, an anatomical gift of a decedent´s body
or part for the purpose of transplantation, therapy, research, or education may
be made by any member of the following classes of persons who is reasonably
available, in the order of priority listed:
(1)
An agent of the decedent at the time of death who could have made an anatomical
gift under paragraph (2) of Code Section 44-5-142 immediately before the
decedent´s death;
(2)
The spouse of the decedent;
(3)
Adult children of the decedent;
(4)
Parents of the decedent;
(5)
Adult siblings of the decedent;
(6)
Adult grandchildren of the decedent;
(7)
Grandparents of the decedent;
(8)
The persons who were acting as the guardians of the person of the decedent at
the time of death;
(9)
Any other person having the authority to dispose of the decedent´s body;
and
(10)
A representative ad litem who shall be appointed by a court of competent
jurisdiction forthwith upon a petition heard ex parte filed by any person, which
representative ad litem shall ascertain that no person of higher priority exists
and is reasonably available who objects to the gift of all or any part of the
decedent´s body and that no evidence exists of the decedent´s having
made a communication expressing a desire that his or her body or body parts not
be donated upon death.
(b)
If there is more than one member of a class listed in paragraph (1), (3), (4),
(5), (6), (7), or (8) of subsection (a) of this Code section entitled to make an
anatomical gift and a good faith effort is made to contact every member of the
class, an anatomical gift may be made by a member of the class unless that
member or a person to which the gift may pass under Code Section 44-5-149 knows
of an objection by another member of the class. If an objection is known, the
gift may be made only by a majority of the members of the class who are
reasonably available.
(c)
A person may not make an anatomical gift if, at the time of the decedent´s
death, a person in a prior class under subsection (a) of this Code section is
reasonably available to make or to object to the making of an anatomical
gift.
44-5-148.
(a)
A person authorized to make an anatomical gift under Code Section 44-5-147 may
make an anatomical gift by a document of gift signed by the person making the
gift or by that person´s oral communication that is electronically recorded
or is contemporaneously reduced to a record and signed by the individual
receiving the oral communication.
(b)
Subject to subsection (c) of this Code section, an anatomical gift by a person
authorized under Code Section 44-5-147 may be amended or revoked orally or in a
record by any member of a prior class who is reasonably available. If more than
one member of the prior class is reasonably available, the gift made by a person
authorized under Code Section 44-5-147 may be:
(1)
Amended only if a majority of the reasonably available members agree to the
amending of the gift; or
(2)
Revoked only if a majority of the reasonably available members agree to the
revoking of the gift or if they are equally divided as to whether to revoke the
gift.
(c)
A revocation under subsection (b) of this Code section is effective only if,
before an incision has been made to remove a part from the donor´s body or
before invasive procedures have begun to prepare the recipient, the procurement
organization, transplant hospital, or physician or technician knows of the
revocation.
44-5-149.
(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) of this Code section, an individual designated by the
person making the anatomical gift if the individual is the recipient of the
part; or
(3)
An eye bank or tissue bank.
(b)
If an anatomical gift to an individual under paragraph (2) of subsection (a) of
this Code section cannot be transplanted into the individual, the part passes in
accordance with subsection (g) of this Code section in the absence of an
express, contrary indication by the person making the anatomical
gift.
(c)
If an anatomical gift of one 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) of this
Code section but identifies the purpose for which an anatomical gift may be
used, the following rules apply:
(1)
If the part is an eye and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate eye bank;
(2)
If the part is tissue and the gift is for the purpose of transplantation or
therapy, the gift passes to the appropriate tissue bank;
(3)
If the part is an organ and the gift is for the purpose of transplantation or
therapy, the gift passes 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 the purpose of
research or education, the gift passes to the appropriate procurement
organization.
(d)
For the purpose of subsection (c) of this Code section, if there is more than
one purpose of an anatomical gift set forth in the document of gift but the
purposes are not set forth in any priority, the gift shall be used for
transplantation or therapy, if suitable. 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 one or more specific parts is made in a document of
gift that does not name a person described in subsection (a) of this Code
section and does not identify the purpose of the gift, the gift may be used only
for transplantation or therapy, and the gift passes in accordance with
subsection (g) of this Code section.
(f)
If a document of 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 import, the gift may be used only for transplantation or
therapy, and the gift passes in accordance with subsection (g) of this Code
section.
(g)
For purposes of subsections (b), (e), and (f) of this Code section, the
following rules apply:
(1)
If the part is an eye, the gift passes to the appropriate eye bank;
(2)
If the part is tissue, the gift passes to the appropriate tissue bank;
and
(3)
If the part is an organ, the gift passes 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 paragraph (2) of subsection (a) of this Code section,
passes to the organ procurement organization as custodian of the
organ.
(i)
If an anatomical gift does not pass pursuant to subsections (a) through (h) of
this Code section or the decedent´s body or part is not used for
transplantation, therapy, research, or education, custody of the body or part
passes to the person under obligation to dispose of the body or
part.
(j)
A person may not accept an anatomical gift if the person knows that the gift was
not effectively made under Code Sections 44-5-143 and 44-5-148 or if the person
knows that the decedent made a refusal under Code Section 44-5-145 that was not
revoked. For purposes of this subsection, if a person knows that an anatomical
gift was made on a document of gift, the person is 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 paragraph (2) of subsection (a) of this Code
section, nothing in this article affects the allocation of organs for
transplantation or therapy.
44-5-150.
(a)
The following persons shall make a reasonable search of an individual who the
person reasonably believes is dead or near death for a document of gift or other
information identifying the individual as a donor or as an individual who made a
refusal:
(1)
A law enforcement officer, firefighter, paramedic, emergency medical technician,
or other first responder finding the individual, in accordance with subsection
(b.1) of Code Section 17-6-11; and
(2)
If no other source of the information is immediately available, a hospital, as
soon as practical after the individual´s arrival at the
hospital.
(b)
If a document of gift or a refusal to make an anatomical gift is located by the
search required by subsection (a) of this Code section and the individual or
deceased individual to whom it relates is taken to a hospital, the person
responsible for conducting the search shall send the document of gift or refusal
to the hospital.
(c)
A person is not subject to criminal or civil liability for failing to discharge
the duties imposed by this Code section but may be subject to administrative
sanctions.
44-5-151.
(a)
A document of gift need not be delivered during the donor´s lifetime to be
effective.
(b)
Upon or after an individual´s death, a person in possession of a document
of gift or a refusal to make an anatomical gift with respect to the individual
shall allow examination and copying of the document of gift or refusal by a
person authorized to make or object to the making of an anatomical gift with
respect to the individual or by a person to which the gift could pass under Code
Section 44-5-149.
44-5-152.
(a)
When a hospital refers an individual at or near death to a procurement
organization, the organization shall make a reasonable search of the records of
any donor registry that it knows exists for the geographical area in which the
individual resides to ascertain whether the individual has made an anatomical
gift.
(b)
The Department of Driver Services shall make donor information reasonably
available to a procurement organization.
(c)
When a hospital refers an individual at or near death to a procurement
organization, the organization may conduct any reasonable examination necessary
to ensure the medical suitability of a part that is or could be the subject of
an anatomical gift for transplantation, therapy, research, or education from a
donor or a prospective donor. During the examination period, measures necessary
to ensure the medical suitability of the part may not be withdrawn unless the
hospital or procurement organization knows that the individual expressed a
contrary intent.
(d)
Unless prohibited by law other than this article, at any time after a
donor´s death, the person to which a part passes under Code Section
44-5-149 may conduct any reasonable examination necessary to ensure the medical
suitability of the body or part for its intended purpose.
(e)
Unless prohibited by law other than this article, an examination under
subsection (c) or (d) of this Code section may include an examination of all
medical and dental records of the donor or prospective donor.
(f)
Unless a procurement organization knows the minor is emancipated, the
procurement organization shall conduct a reasonable search for the parents of
the minor and provide the parents with an opportunity to revoke or amend the
anatomical gift or revoke the refusal, if any.
(g)
Upon referral by a hospital under subsection (a) of this Code section, a
procurement organization shall make a reasonable search for any person listed in
Code Section 44-5-147 having priority to make an anatomical gift on behalf of a
prospective donor. If a procurement organization receives information that an
anatomical gift to any other person was made, amended, or revoked, it shall
promptly advise the other person of all relevant information.
(h)
Subject to subsection (i) of Code Section 44-5-149 and Code Section 44-5-151,
the rights of the person to which a part passes under Code Section 44-5-149 are
superior to the rights of all others with respect to the part. The person may
accept or reject an anatomical gift in whole or in part. Subject to the terms of
the document of gift and this article, a person that accepts an anatomical gift
of an entire body may allow embalming, burial, or cremation and use of remains
in a funeral service. If the gift is of a part, the person to which the part
passes under Code Section 44-5-149, upon the death of the donor and before
embalming, burial, or cremation, shall cause the part to be removed without
unnecessary mutilation.
(i)
Neither the physician who attends the decedent at death nor the physician who
determines the time of the decedent´s death may participate in the
procedures for removing or transplanting a part from the decedent.
(j)
A physician or technician may remove a donated part from the body of a donor
that the physician or technician is qualified to remove.
44-5-153.
Each
hospital in this state shall enter into agreements or affiliations with
procurement organizations for coordination of procurement and use of anatomical
gifts.
44-5-154.
(a)
Except as otherwise provided in subsection (b) of this Code section, a person
that for valuable consideration knowingly purchases or sells a part for
transplantation or therapy if removal of a part from an individual is intended
to occur after the individual´s death commits a felony and upon conviction
is subject to a fine not exceeding $50,000.00 or imprisonment not exceeding five
years, or both.
(b)
A person may charge a reasonable amount for the removal, processing,
preservation, quality control, storage, transportation, implantation, or
disposal of a part.
44-5-155.
A
person that, in order to obtain a financial gain, intentionally falsifies,
forges, conceals, defaces, or obliterates a document of gift, an amendment or
revocation of a document of gift, or a refusal commits a felony and upon
conviction is subject to a fine not exceeding $50,000.00 or imprisonment not
exceeding five years, or both.
44-5-156.
(a)
A person that acts in accordance with this article or with the applicable
anatomical gift law of another state, or attempts in good faith to do so, is not
liable for the act in a civil action, criminal prosecution, or administrative
proceeding.
(b)
Neither the person making an anatomical gift nor the donor´s estate is
liable for any injury or damage that results from the making or use of the
gift.
(c)
In determining whether an anatomical gift has been made, amended, or revoked
under this article, a person may rely upon representations of an individual
listed in paragraph (2), (3), (4), (5), (6), or (7) of subsection (a) of Code
Section 44-5-147 relating to the individual´s relationship to the donor or
prospective donor unless the person knows that the representation is
untrue.
44-5-157.
(a)
A document of gift is valid if executed in accordance with:
(1)
This article;
(2)
The laws of the state or country where it was executed; or
(3)
The laws of the state or country where the person making the anatomical gift was
domiciled, has a place of residence, or was a national at the time the document
of gift was executed.
(b)
If a document of gift is valid under this Code section, the law of this state
governs the interpretation of the document of gift.
(c)
A person may presume that a document of gift or amendment of an anatomical gift
is valid unless that person knows that it was not validly executed or was
revoked.
44-5-158.
(a)
The Department of Driver Services shall make available to procurement
organizations or secure data centers maintained and managed at the direction of
a procurement organization the name, license number, date of birth, gender, and
most recent address of any person who obtains an organ donor´s license.
Information so obtained by such organizations shall be used for the purpose of
establishing a state-wide organ donor registry accessible to organ tissue and
eye banks authorized to function as such in this state and shall not be further
disseminated.
(b)
A donor registry shall:
(1)
Allow a donor or other person authorized under Code Section 44-5-142 to include
on the donor registry a statement or symbol that the donor has made, amended, or
revoked an anatomical gift;
(2)
Be accessible to a procurement organization to allow it to obtain relevant
information on the donor registry to determine, at or near death of the donor or
a prospective donor, whether the donor or prospective donor has made, amended,
or revoked an anatomical gift; and
(3)
Be accessible for purposes of paragraphs (1) and (2) of this subsection seven
days a week on a 24 hour basis.
(c)
Personally identifiable information on a donor registry about a donor or
prospective donor may not be used or disclosed without the express consent of
the donor, prospective donor, or person that made the anatomical gift for any
purpose other than to determine, at or near death of the donor or prospective
donor, whether the donor or prospective donor has made, amended, or revoked an
anatomical gift; provided, however, this shall not preclude the use of
aggregated demographic information for the purposes of annual reporting,
research, or education.
(d)
This Code section does not prohibit any person from creating or maintaining a
donor registry that is not established by or under contract with this state.
Any such registry shall comply with subsections (b) and (c) of this Code
section.
44-5-159.
If
a prospective donor has an advance directive for health care in accordance with
Chapter 32 of Title 31 or a declaration signed by a prospective donor, unless it
expressly provides to the contrary, measures necessary to ensure the medical
suitability of an organ for transplantation or therapy may not be withheld or
withdrawn from the prospective donor.
44-5-159.1.
(a)
A medical examiner and procurement organizations shall cooperate with each other
to maximize the opportunity to recover anatomical gifts for the purpose of
transplantation, therapy, research, or education.
(b)
If a medical examiner receives notice from a procurement organization that an
anatomical gift might be available or was made with respect to a decedent whose
body is under the jurisdiction of the medical examiner and a postmortem
examination is going to be performed, unless the medical examiner denies
recovery in accordance with Code Section 44-5-159.2, the medical examiner or
designee shall conduct, when practicable, a postmortem examination of the body
or the part in a manner and within a period compatible with its preservation for
the purposes of the gift. The date and location of such examinations shall
occur as specified in the agreement as provided for in subsection (e) of Code
Section 44-5-159.2.
(c)
A part may not be removed from the body of a decedent under the jurisdiction of
a medical examiner for transplantation, therapy, research, or education unless
the part is the subject of an anatomical gift. The body of a decedent under the
jurisdiction of the medical examiner may not be delivered to a person for
research or education unless the body is the subject of an anatomical gift.
This subsection shall not preclude a medical examiner from performing the
medicolegal autopsy upon the body or parts of a decedent under the jurisdiction
of the medical examiner or from using the body or parts of a decedent under the
jurisdiction of the medical examiner for the purposes of education, training,
and research required by the medical examiner.
44-5-159.2.
(a)
Upon specific request of a procurement organization, and in accordance with the
procedures set forth under the agreement established pursuant to subsection (e)
of this Code section, a medical examiner shall release to the procurement
organization the name, contact information, and available medical and social
history of a decedent whose body is under the jurisdiction of the medical
examiner. If the decedent´s body or part is medically suitable for
transplantation, therapy, research, or education, and the gift or procurement
does occur, the medical examiner shall release postmortem examination results to
the procurement organization. The procurement organization may make a
subsequent disclosure of the postmortem examination results or other information
received from the medical examiner only if relevant to transplantation, therapy,
research, or education.
(b)
The medical examiner may conduct a medicolegal investigation by reviewing all
medical records, laboratory test results, x-rays, other diagnostic results, and
other information that any person possesses about a donor or prospective donor
whose body is under the jurisdiction of the medical examiner that the medical
examiner determines may be relevant to the investigation.
(c)
A person that has any information requested by a medical examiner pursuant to
subsection (b) of this Code section shall provide that information as
expeditiously as possible to allow the medical examiner to conduct the
medicolegal investigation within a period compatible with the preservation of
parts for the purpose of transplantation, therapy, research, or
education.
(d)
If an anatomical gift has been or might be made of a part of a decedent whose
body is under the jurisdiction of the medical examiner and a postmortem
examination is not required, or the medical examiner determines that a
postmortem examination is required but that the recovery of the part that is the
subject of an anatomical gift will not interfere with the examination, the
medical examiner and procurement organization shall cooperate in the timely
removal of the part from the decedent for the purpose of transplantation,
therapy, research, or education.
(e)
The medical examiner and procurement organizations shall enter into an agreement
signed by both parties setting forth protocols and procedures to govern
relations between the parties when an anatomical gift of a part from a decedent
under the jurisdiction of the medical examiner has been or might be made, but
the medical examiner believes that the recovery of the part could interfere with
the postmortem investigation into the decedent´s cause or manner of death.
Decisions regarding the recovery of organs, tissue, and eyes from such a
decedent, and decisions about approaches to tissue donation cases compared with
organ donation cases, shall be made in accordance with the agreement. In the
event that the medical examiner denies recovery of an anatomical gift, the
procurement organization may request the regional medical examiner serving the
county having jurisdiction over the death or the chief medical examiner
appointed pursuant to Code Section 35-3-153 to reconsider the denial and to
permit the recovery to proceed. The parties shall evaluate the effectiveness of
the protocols and procedures at regular intervals but no less frequently than
every two years. A medical examiner may limit its involvement and agreements
with procurement organizations to one procurement organization, but may work
with more than one procurement organization in the discretion of the medical
examiner.
(f)
If the medical examiner or designee allows recovery of a part under subsection
(d) or (e) of this Code section, the procurement organization, upon request,
shall cause the physician or technician who removes the part to provide the
medical examiner with a record describing the condition of the part, a biopsy, a
photograph, and any other information and observations that would assist in the
postmortem examination.
(g)
If a medical examiner or designee is required to be present at a removal
procedure pursuant to an agreement entered into under subsection (e) of this
Code section, upon request the procurement organization requesting the recovery
of the part shall reimburse the medical examiner or designee for the additional
costs incurred in complying with subsection (e) of this Code
section.
44-5-159.3.
This
article applies to an anatomical gift or amendment to, revocation of, or refusal
to make an anatomical gift, whenever made.
44-5-159.4.
This
article modifies, limits, and supersedes the Electronic Signatures in Global and
National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify,
limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or
authorize electronic delivery of any of the notices described in Section 103(b)
of that act, 15 U.S.C. Section 7003(b).
SECTION
2.
Article
6 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating
to crimes and offenses relative to human body trafficking, is amended by
revising Code Section 16-12-160, relating to buying or selling or offering to
buy or sell the human body or parts, as follows:
"16-12-160.
(a)
It shall be unlawful, except as provided in subsection (b) of this Code section,
for any person, firm, or corporation to buy or sell, to offer to buy or sell, or
to assist another in buying or selling or offering to buy or sell a human body
or any part of a human body or buy or sell a human fetus or any part
thereof.
(b)
The prohibition contained in subsection (a) of this Code section shall not apply
to:
(1)
The purchase or sale of whole blood, blood plasma, blood products, blood
derivatives, other self-replicating body fluids, or hair;
(2)
A gift or donation of a human body or any part of a human body or any procedure
connected therewith as provided in Article 6 of Chapter 5 of Title 44 or to the
payment of a
processing
fee in connection with such gift or donation
pursuant to
subsection (b) of Code Section 44-5-154 if
such fee is paid to a
bank or
storage facility
procurement
organization, as
those terms
are defined
that term is
defined in Code Section
44-5-142
44-5-141;
(3)
The reimbursement of actual expenses, including medical costs, lost income, and
travel expenses, incurred by a living person in giving or donating a part of the
person´s body;
(4)
The payment of financial assistance under a plan of insurance or other health
care coverage;
(5)
The purchase or sale of human tissue, organs, or other parts of the human body
for health sciences education; or
(6)
The payment of reasonable costs associated with the removal, storage, or
transportation of a human body or any part of a human body given or donated for
medical or scientific purposes.
(c)
Any person, firm, or corporation convicted of violating subsection (a) of this
Code section shall be guilty of a felony and, upon conviction thereof, shall be
punished by a fine not exceeding $5,000.00 or by imprisonment for not less than
one year nor more than five years, or both."
SECTION
3.
Chapter
23 of Title 31 of the Official Code of Georgia Annotated, relating to eye banks,
is amended by repealing and reserving Code Section 31-23-6, relating to removal
of eye or corneal tissue by a coroner, medical examiner, or other
individual.
SECTION
4.
The
following Code sections of the Official Code of Georgia Annotated are amended by
striking "Georgia Anatomical Gift Act" wherever that term occurs and inserting
in its place "Georgia Revised Uniform Anatomical Gift Act":
(1)
Code Section 31-23-2, relating to the effect on eye donations of the "Georgia
Anatomical Gift Act";
(2)
Code Section 31-32-4, relating to the advance directive for health care
statutory form;
(3)
Code Section 31-32-7, relating to duties and responsibilities of health care
agents designated in advance directives for health care;
(4)
Code Section 31-32-8, relating to duties and responsibilities of health care
providers relating to advance directives for health care; and
(5)
Code Section 40-5-6, relating to forms for making of anatomical gifts upon
issuance or renewal of drivers´ licenses.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.