The controversy as to whether a person could hold a “property right” in the body of a deceased relative dates back to the early days of the English common law. Blackstone, the famous commentator of the early English common law, stated in his Commentaries that “no property right exist[s] relative to a dead body” under the common law. Courts have continued to recognize that there is no property right in the commercial sense to the body of a relative and that the laws relating to wills and the descent of property do not apply to a relative’s body. The situation however is far from simple, as courts do recognize a right (or duty) to arrange burial and a right to maintain the security of the interred body (within limits)—a so-called “quasi-property right.”

Courts in America have created this legal fiction of a “quasi-property right” in a corpse that is held by the next-of-kin. This “quasi-property right” gives the next-of-kin certain rights over the body of a decedent which will be protected by the courts. These rights and responsibilities include the right to custody of the body, to arrange burial, and to prevent the corpse from disturbances after burial (with certain court-ordered exceptions).

The Uniform Anatomical Gift Act of 1968

In response to the wide variation in state laws regarding organ and tissue donation, the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) met in August, 1967 to develop what became the Uniform Anatomical Gift Act of 1968 (“1968 Act”). The purpose of the NCCUSL is to promulgate model statutes in diverse areas of the law, which then can be adopted by the various states; the hope being that the Uniform Acts will be adopted with little if any variation by all the states, thereby resulting in uniformity of law across state lines. The NCCUSL noted in its Prefatory Note to the 1968 Act that, as regards the law of organ donation, “both the common law and the present statutory picture is one of confusion, diversity and inadequacy.” The purpose then of the commissioners was to provide a “comprehensive approach to organ donation.” The commissioners’ hope for widespread acceptance of the 1968 Act was promptly realized when it was adopted, in substantially unchanged versions, by all states and the District of Columbia by 1971, with forty-one states having adopted it within eighteen months of its presentation.

The goal of the NCCUSL, in drafting the Act, was to address the principal legal questions in the area of anatomical gifts, which were listed in the Prefatory Note:

1. who may during his lifetime make a legally effective gift of his body or a part thereof,
   
2. what is the right of the next-of-kin, either to set aside the decedent’s expressed wishes, or themselves to make the anatomical gifts from the dead body,
   
3. who may legally become donees of anatomical gifts,
   
4. for what purposes may such gifts be made,
   
5. how may gifts be made, can it be done by will, by writing, by a card carried on the person, or during his lifetime,
   
6. how may a gift be revoked by the donor during his lifetime,
   
7. what are the rights of survivors in the body after removal of donated parts,
   
8. what protection from legal liability should be afforded to surgeons and others involved in carrying out anatomical gifts,
   
9. should such protection be afforded regardless of the state in which the document of gift is executed
   
10. what should the effect of an anatomical gift be in case of conflict with laws concerning autopsies,
    
11. should the time of death be defined by law in any way
    
12. should the interest in preserving life by the physician in charge of a decedent preclude him from participating in the transplant procedure by which donated tissues or organs are transferred to a new host.
    

This list of questions highlights what were the major areas of legal confusion, which the commissioners sought to clarify in drafting a model act that would be presented to the various states for adoption. The commissioners’ task was not easy, as they had the difficult task of balancing all of the competing interests in this highly-charged and emotional area of the law. Their goal was to balance the wishes of the deceased, the wishes of the surviving family, society’s need for human organs, and the states’ interest in preserving life.

The 1968 Act met with widespread approval and was, as mentioned above, adopted by all states within three years. Currently, approximately thirty-two states have anatomical gift statutes that are based on the 1968 Act. While there were (and are) slight variations among the states, which has led to somewhat less than complete uniformity, the 1968 Act was substantially adopted as drafted. Most of the variations have been minor, e.g. Alaska set its minimum age for donation at nineteen years of age, rather than eighteen. The remaining eighteen states have adopted a later uniform act, the Uniform Anatomical Gift Act of 1987 (discussed infra), or in the case of Indiana, a hybrid of the two acts.

The 1968 Act consists of seven major sections. Descriptions of the sections herein pertain to the Uniform Act itself and physicians must consult their particular state’s statute since variations, generally minor, do exist. Section 2 of the 1968 Act provides for individuals “of sound mind and 18 years of age or more [to] give all or any part of his body . . . to take effect upon death.” In addition, the Section establishes a priority list of individuals who may, “in the absence of actual notice of contrary indications by the decedent . . . give all or any part of the decedent’s body.” The order of priority is: l) spouse, 2) adult son or daughter, 3) either parent, 4) an adult brother or sister, 5) a guardian of the person of the decedent at the time of his death, and 6) any other person authorized or under obligation to dispose of the body. The 1968 Act also requires that the individual making the donation not have any actual notice of “opposition by a member of the same or a prior class.” The donation therefore can be made by a listed individual, so long as there was no known objection by the decedent, or any objection by an individual in the same or a higher priority classification. Of note is the fact that the final priority classification is “any other person authorized or under obligation to dispose of the body,” a group that would include non-relatives.

Section 4 of the 1968 Act specifies the manner in which an anatomical gift may be made. There are two ways in which an anatomical gift document may be executed—by will or by a written document other than a will. Section 4(a) specifically allows for an anatomical gift to be “made by will—a significant extension of traditional estate law to be sure.” Such a will provision will (and obviously must) be effective without waiting for probate, since such a delay would make the donation worthless. In fact, the anatomical gift provision in the will is effective, even if the will is otherwise found, for whatever reason, to be invalid. The second available method of executing an anatomical gift document is by a written document, which is not a will. Such a document “may be a card designed to be carried on the person, [and] must be signed by the donor [in the presence of 2 witnesses who must sign the document in his presence]” (e.g. the back of a drivers license). A gift made by a relative need not be in writing and signed, but rather may be made by “telegraphic, recorded telephonic or other recorded message,” since the decedent’s relatives may be far from the place of death.

There is, in Section 6, a provision for amendment or revocation of the gift. An individual may revoke his anatomical gift document by: l) executing and delivering to the donee a signed statement of revocation, or 2) an oral statement of revocation in the presence of two persons which is communicated to the donee, or 3) a statement during a terminal illness or injury to an attending physician and communicated to the donee, or 4) a signed card or document found on the decedent’s person or in his effects. If the gift was made by will, it may be modified or revoked according to the manner prescribed for the revocation of wills, a matter of individual state law. These provisions are obviously crucial to assure that the ultimate desires of the potential donor will be carried out.

Section 7, which contains the limitation of liability provision, is a crucial portion of the Act. First, this section addresses the determination of the time of death—“The time of death shall be determined by a physician who tends the donor at his death.” The Act leaves the determination of death to the attending physician who should determine death by accepted medical standards. There is no attempt to try to statutorily specify a method of determining the time of death (a strength or weakness of the 1968 Act, depending on who the commentator is). The Act does, however, provide that the physician who makes the determination of death “shall not participate in the procedures for removing or transplanting a part,” so as to avoid any possible appearance of a conflict of interest. [This concern of a conflict of interest remains a concern of a small, but significant, number of potential donors and their families.] Most importantly, this section contains, in §7(c), a limitation of liability person who acts in good faith in accord with the terms of this Act or with the anatomical gift laws of another state [or a foreign country] is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.” Interpretation of this section is often determinative in deciding cases related to anatomical gifts, as will be seen in the cases described later in this article. Courts have followed the intent of the drafters, who stated in the Comment Section, that the immunity section “merits genuinely liberal interpretation to effectuate the purpose and intent of the Uniform Act, that is, to encourage and facilitate the important and ever increasing need for human tissue and organs.”

The 1968 Act was not without its shortcomings. One of the major perceived shortcomings was the donor card system. Despite the fact that it was the intent of the commissioners, and the statutory language is clear to that effect, that a properly executed donor card would be a legally binding document, in practice, it has not been treated that way. Rather, consent from the decedent’s relatives is routinely sought, and no donation takes place without the relatives’ consent, even if there is a valid donor card. Organ procurement agencies have generally not been willing to subject themselves to the potential legal challenges and bad public relations that could result if organs were harvested, and then, after the harvest, relatives are upset and bring legal action against the procurement agency. As of 1983, only California, Colorado, Florida, and Wyoming were taking full advantage of the 1968 Act and harvesting organs solely on the authority of a donor document. The 1968 Act was also criticized for its apparent inability to substantially increase the supply of organs for transplant. According to American Red Cross statistics, although there were more than 23,000 potential donors killed in accidents in 1991, organs were harvested from only about 3,000. These were two of the primary issues that the commissioners sought to address when they met in 1985 to discuss possible revisions of the 1968 Act.


The Uniform Anatomical Gift Act of 1987

In response to proposals for improvements in the 1968 Act, the NCCUSL began work in 1985 to draft amendments to the Act, and the 1987 Uniform Anatomical Gift Act (“1987 Act”) was approved in 1987, and has subsequently been adopted, in large part, by eighteen states. One state, Indiana, has chosen to adopt a true hybrid of the 1968 and 1987 Acts. The Prefatory Note to the 1987 Act identified the key problems, in the opinion of the commissioners that continued to hinder organ donation:

1. Failure of persons to sign written directives.
   
2. Failure of police and emergency personnel to locate written directives at
   
3. accident sites.
   
4. Uncertainty on the part of the public about circumstances and timing of organ recovery.
   
5. Failure on the part of medical personnel to recover organs on the basis of written directives.
   
6. Failure to systematically approach family members concerning donation.
   
7. Inefficiency on the part of some organ procurement agencies in obtaining referrals of donors.
   
8. High wastage rates on the part of some organ procurement agencies in failing to place donated organs.
   
9. Failure to communicate the pronouncement of death to next of kin.
   
10. Failure to obtain adequate informed consent from family members.
    

Unfortunately, while these important concerns were identified and addressed, the changes enacted in the 1987 Act have not substantially improved the supply of organs for transplantation.

The 1987 Act consists of seventeen sections, compared to eleven in the 1968 Act. There were a number of significant changes from the 1968 Act which were made in the 1987 Act, although most sections were left substantively unchanged.

Section 2(h) of the 1987 Act clarified the fact that an individual’s donation of his or her organs and/or tissue cannot be overridden. This point was not sufficiently clear in the 1968 Act and, as a result, transplant services were unnecessarily requesting consent from relatives when the donor had already executed a valid donor card. [The practice of not harvesting organs or tissue without the consent of relatives, even when a legally binding donor instrument has been executed, remains the practice today.] As a result, significant numbers of potential organs and tissue for transplantation are lost.

Section 4 provides, in certain cases, for the medical examiner to authorize the donation of tissue from a body, which is in the custody of the medical examiner. The medical examiner must make a “reasonable effort” to locate the decedent’s relatives and give them the option to object, and must also have no actual knowledge of a refusal to donate by the decedent or an authorized relative.

Section 5 requires routine inquiry regarding organ and tissue donation of patients, “on or before admission to a hospital,” as well as of relatives, “at or near the time of [the] death of a patient.”

Section 9 prohibits the sale or purchase of “a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent”. Interestingly, the section does not proscribe the sale of “parts” by living donors, if harvest is intended to take place before death. This section, however, is effectively preempted by Federal law, which prohibits the purchase or sale of human organs for transplantation (discussed infra).

Positive response to the 1987 Act has not been as widespread as was the response to the 1968 Act. Resistance to adoption of the 1987 Act has been attributed in particular to concerns regarding sections 4 and 5(a). Objections have been raised to the “presumed consent” aspect of Section 4, which allows for the harvest of tissues without the family’s consent, or even knowledge. Many states already had presumed consent/removal statutes, but they were, and are, generally limited to the removal of corneas and pituitary glands. This section went significantly beyond the then existing removal statutes. Section 5(a) has provoked even more controversy than Section 4. The required inquiry at the time of hospital admission has, in most states, not been adopted. While proponents of this section feel that it would increase donation, opponents have been concerned that it might have the opposite effect, and might “actually dissuade potential donors because of the timing or setting.” It is not clear which side is right, but what is clear, is that just after death is not a very opportune “timing or setting” for the discussion of organ and tissue donation. Finally, there has been an understandable lack of urgency regarding the adoption of the 1987 Act, because all states already had in place a version of the 1968 Act, a situation quite different than in the late 1960's when there was no uniformity regarding organ donation law.