According to the U.S. Department of Health & Human Services, there are more than 125,000 people across the country on waiting lists for anatomical gifts, including more than 7,000 in Pennsylvania alone. In an effort to reduce these numbers, Pennsylvania recently passed the Donate Life PA Act (DLPA). The DLPA represents the first major change to Pennsylvania’s anatomical gift law in more than 25 years. It was passed unanimously by both the Pennsylvania House and Senate and was considered by many to be long overdue.
The goal of the DLPA is to help save and improve lives by expanding the types of anatomical gifts that can be made, streamlining the donation process, reducing unnecessary transplant denials by removing administrative obstacles, and increasing public awareness about the shortage of donors and the benefit of becoming a donor. In passing the DLPA, Pennsylvania becomes the 47th state to adopt a version of the Uniform Anatomical Gift Act of 2006, which was intended to standardize practices among the states to make the donation process more efficient.
The DLPA makes numerous changes to the existing state law, but the focus of this article is primarily on the new ability to donate a type of anatomical gift referred to as a “vascularized composite allograft,” as well as the process for making such a gift. A vascularized composite allograft (VCA) is defined by the statute as a human hand, facial tissue, limb, or other body part that contains multiple tissue types and requires surgical connection of blood vessels to function after transplantation. The definition specifically excludes organs, eyes, tissue, bones, blood, and certain other body parts. In effect, the statute now has two largely parallel procedures: one for donating VCAs and one for donating all other types of anatomical gifts.
The DLPA provides that a VCA gift from an individual whose death is imminent or who has died in the hospital requires “explicit and specific consent” from the donor or from a “surrogate decision maker.” For this purpose, a surrogate decision maker is any of the following individuals, in the order listed: the agent appointed under the decedent’s healthcare power of attorney; the spouse of the decedent; an adult child of the decedent; a parent of the decedent; an adult sibling of the decedent; an adult grandchild of the decedent; a grandparent of the decedent; or any other person related to the decedent by blood, marriage, or adoption. This is an important change because, under prior law, an agent under a healthcare power of attorney was not authorized to make an anatomical gift.
Any person who is 18 years of age or older may choose to become a VCA donor. The authorization for doing so may be in a will, living will, healthcare power of attorney, general power of attorney, or other document. For most people, a VCA gift will be implemented through the individual’s healthcare power of attorney. To be valid, the authorization must be in writing, separately stated from any other anatomical gift, and witnessed by two individuals, and must explicitly and specifically state that the individual authorizes a VCA gift. It is not sufficient to simply provide a generalized consent to the donation of organs and other anatomical parts.
If an individual did not authorize a VCA gift in the manner described above, a surrogate decision maker may nevertheless provide the necessary authorization on behalf of that individual. In doing so, however, the surrogate decision maker must act in accordance with the donor’s wishes, which remain paramount. Thus, if there is evidence in a healthcare power of attorney or similar document that the individual has revoked or denied a VCA gift, or if the donor has provided actual notice of a contrary intent in any manner, then the surrogate decision maker may not authorize a VCA gift. In addition, if the individual is under the age of 18, only the parent or guardian may authorize a VCA gift. If the individual is 18 years of age or older, the surrogate decision maker can be any of the individuals noted above.
A VCA gift may be made to any individual for therapy or transplantation. A prospective recipient who has a “physical or mental disability” is not ineligible to receive a VCA gift unless a physician or surgeon finds such disability to be “medically significant” to the provision of the VCA gift. Other permissible recipients of VCA gifts include (i) any hospital, physician, or surgeon; (ii) any accredited medical or dental school; or (iii) any bank or storage facility. For each of these groups, the purpose for the VCA gift must generally be for medical or dental education, research, therapy, transplantation (except in the case of medical or dental school), or advancement of medical or dental science.
The DLPA states that a hospital “shall notify the applicable designated organ procurement organization…of an individual whose death is imminent or who has died in the hospital.” This notification is required to take place “without regard to whether the person has executed an advance healthcare directive.” Upon receiving this notification from the hospital, a representative from the organ procurement organization or a hospital employee who is a “designated requestor” will determine if the individual has authorized VCA gifts. If the individual has not authorized VCA gifts, the statute requires that the surrogate decision maker be notified about the option of doing so. Among other things, this notification “must educate the surrogate decision maker” about the process of recovering VCA gifts. In addition, the hospital is required to indicate in the decedent’s medical records whether there was a document authorizing a VCA gift and whether a VCA gift was actually made. Procedures are also in place to permit minimally invasive testing to determine if a VCA gift would be suitable for the intended purpose.
The new law also contains a host of other protections, including restrictions on disclosure of individually identifiable information acquired in the course of completing a VCA gift, though the statute also provides that, in certain cases, the identity of a VCA donor may not be able to be protected if a VCA transplant includes fingerprints and birthmarks. Other statutory protections exist for minors, for cases of suspected criminal activity, and in the event an autopsy is necessary. There is also a provision in the statute whereby the donor of a VCA gift may request reconstructive surgery, which is to be provided at no cost to the donor or the donor’s family. In addition, it is noteworthy that, although a driver’s license may be used to authorize organ donation, it may not be used to authorize VCA gifts.
As mentioned above, if a prospective donor intends to make a VCA gift, the authorization will have to be provided in a written document. For most individuals, this will mean including specific language in the healthcare power of attorney. There are a number of decisions to be made in this context. For example, the success of a transplant procedure may depend to a large degree on whether the donor permits the use of artificial support for a limited time in order to facilitate the donation. Likewise, the donor may wish to limit the type of VCA gift or request reconstructive surgery after the VCA has been recovered. Any preferences the donor has in this regard must be set forth in writing in a healthcare power of attorney or similar document.
By updating its law on anatomical gifts, Pennsylvania has joined a broader national effort to standardize and simplify the procedures for organ and tissue donation, and now, for making VCA gifts. The hope and expectation is that the enactment of the new law will increase the number of willing donors who can be quickly and successfully matched with potential transplant recipients.
DISCLAIMER: The foregoing does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about how these and other laws and procedures relate to your specific situation.
Prepared by GKH attorney Doug Smith. Attorney Smith practices in the areas of Estate Planning and Administration, Business Succession Planning, Nonprofit Organization, Corporate and Commercial Law, and Tax Law.