SENATE BILL NO. 1017

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S1017aa..............................................by JUDICIARY AND RULES
ANATOMICAL GIFT ACT - Repeals and adds to existing law relating to
anatomical gifts to set forth provisions for the Revised Uniform Anatomical
Gift Act.
                                                                        
01/16    Senate intro - 1st rdg - to printing
01/17    Rpt prt - to Jud
01/25    Rpt out - to 14th Ord
01/31    Rpt out amen - to engros
02/01    Rpt engros - 1st rdg - to 2nd rdg as amen
02/02    2nd rdg - to 3rd rdg as amen
02/05    3rd rdg as amen - PASSED - 32-0-3
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
      Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Gannon, Geddes,
      Goedde, Hammond, Heinrich, Hill, Kelly, Keough, Langhorst, Little,
      Lodge, Malepeai, McGee, McKague, McKenzie, Pearce, Richardson,
      Schroeder, Stegner, Stennett
      NAYS -- None
      Absent and excused -- Jorgenson, Siddoway, Werk
    Floor Sponsor - Davis
    Title apvd - to House
02/06    House intro - 1st rdg - to Health/Wel
02/13    Rpt out - rec d/p - to 2nd rdg
02/14    2nd rdg - to 3rd rdg
02/16    3rd rdg - PASSED - 68-0-2
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
      Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew, Clark,
      Collins, Crane, Durst, Eskridge, Hagedorn, Hart, Harwood, Henbest,
      Henderson, Jaquet, Killen, King, Kren, Labrador, Lake, LeFavour,
      Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer, Moyle,
      Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring,
      Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
      Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27), Wood(35), Mr.
      Speaker
      NAYS -- None
      Absent and excused -- Block, Edmunson
    Floor Sponsor - Henbest
    Title apvd - to Senate
02/19    To enrol
02/20    Rpt enrol - Pres signed
02/21    Sp signed
02/22    To Governor
02/23    Governor signed
         Session Law Chapter 30
         Effective: 07/01/07

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1017
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ANATOMICAL GIFTS; REPEALING CHAPTER  34,  TITLE  39,  IDAHO  CODE,
  3        RELATING  TO  THE  IDAHO ANATOMICAL GIFT ACT; AND AMENDING TITLE 39, IDAHO
  4        CODE, BY THE ADDITION OF A NEW CHAPTER 34, TITLE 39, IDAHO  CODE,  TO  SET
  5        FORTH  THE  REVISED UNIFORM ANATOMICAL GIFT ACT, TO PROVIDE A SHORT TITLE,
  6        TO DEFINE TERMS, TO PROVIDE APPLICABILITY, TO SET FORTH WHO  MAY  MAKE  AN
  7        ANATOMICAL  GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR THE MANNER OF MAK-
  8        ING AN ANATOMICAL GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR AMENDING  OR
  9        REVOKING AN ANATOMICAL GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR REFUSAL
 10        TO  MAKE AN ANATOMICAL GIFT AND THE EFFECT OF SUCH REFUSAL, TO PROVIDE FOR
 11        PRECLUSIVE EFFECT OF ANATOMICAL GIFT,  AMENDMENT  OR  REVOCATION,  TO  SET
 12        FORTH WHO MAY MAKE AN ANATOMICAL GIFT OF A DECEDENT'S BODY OR PART, TO SET
 13        FORTH  THE  MANNER OF MAKING, AMENDING OR REVOKING AN ANATOMICAL GIFT OF A
 14        DECEDENT'S BODY OR PART, TO SET FORTH REQUIREMENTS FOR  INFORMED  CONSENT,
 15        TO  SET  FORTH PERSONS THAT MAY RECEIVE AN ANATOMICAL GIFT AND THE PURPOSE
 16        OF SUCH GIFT, TO REQUIRE SEARCH AND  NOTIFICATION,  TO  PROVIDE  THAT  THE
 17        DELIVERY  OF  A DOCUMENT OF GIFT IS NOT REQUIRED, TO PROVIDE FOR THE RIGHT
 18        TO EXAMINE A DOCUMENT OF GIFT OR REFUSAL, TO SET FORTH RIGHTS  AND  DUTIES
 19        OF  PROCUREMENT  ORGANIZATIONS  AND OTHERS, TO PROVIDE FOR COORDINATION OF
 20        PROCUREMENT AND USE, TO PROHIBIT THE SALE OR PURCHASE OF  PARTS,  TO  PRO-
 21        HIBIT OTHER ACTS, TO PROVIDE IMMUNITY, TO PROVIDE FOR LAW GOVERNING VALID-
 22        ITY  OF  A DOCUMENT OF GIFT, TO PROVIDE FOR CHOICE OF LAW, TO PROVIDE PRE-
 23        SUMPTION OF VALIDITY, TO PROVIDE FOR A DONOR REGISTRY, TO  SET  FORTH  THE
 24        EFFECT  OF  AN  ANATOMICAL  GIFT  ON  AN ADVANCE HEALTH CARE DIRECTIVE, TO
 25        REQUIRE COOPERATION BETWEEN THE CORONER AND PROCUREMENT  ORGANIZATION,  TO
 26        PROVIDE  FOR  THE FACILITATION OF AN ANATOMICAL GIFT FROM A DECEDENT WHOSE
 27        BODY IS UNDER THE JURISDICTION OF THE CORONER, TO PROVIDE  FOR  UNIFORMITY
 28        OF  APPLICATION  AND CONSTRUCTION AND TO PROVIDE FOR RELATION TO THE ELEC-
 29        TRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
                                                                        
 30    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 31        SECTION 1.  That Chapter 34, Title 39, Idaho Code, be,  and  the  same  is
 32    hereby repealed.
                                                                        
 33        SECTION  2.  That Title 39, Idaho Code, be, and the same is hereby amended
 34    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
 35    ter 34, Title 39, Idaho Code, and to read as follows:
                                                                        
 36                                      CHAPTER 34
 37                         REVISED UNIFORM ANATOMICAL GIFT ACT
                                                                        
 38        39-3401.  SHORT TITLE. This chapter shall be known and may be cited as the
 39    "Revised Uniform Anatomical Gift Act."
                                                                        
 40        39-3402.  DEFINITIONS. In this chapter:
                                                                        
                                       2
                                                                        
  1        (1)  "Adult"  means  an  individual who is at least eighteen (18) years of
  2    age.
  3        (2)  "Agent" means an individual:
  4        (a)  Authorized to make health care decisions on the principal's behalf by
  5        a power of attorney for health care; or
  6        (b)  Expressly authorized to make an anatomical gift  on  the  principal's
  7        behalf by any other record signed by the principal.
  8        (3)  "Anatomical  gift" means a donation of all or part of a human body to
  9    take effect after the donor's death for the purpose of transplantation,  ther-
 10    apy, research or education.
 11        (4)  "Decedent"  means  a deceased individual whose body or part is or may
 12    be the source of an anatomical gift. The term includes a stillborn infant and,
 13    subject to restrictions imposed by law other than this chapter, a fetus.
 14        (5)  "Disinterested witness" means a witness other than the spouse, child,
 15    parent, sibling, grandchild, grandparent or guardian  of  the  individual  who
 16    makes, amends, revokes or refuses to make an anatomical gift, or another adult
 17    who  exhibited  special care and concern for the individual. The term does not
 18    include a person to which an anatomical gift could pass under section 39-3412,
 19    Idaho Code.
 20        (6)  "Document of gift" means a donor card or other record used to make an
 21    anatomical gift. The term  includes  a  statement  or  symbol  on  a  driver's
 22    license, identification card or donor registry.
 23        (7)  "Donor"  means  an individual whose body or part is the subject of an
 24    anatomical gift.
 25        (8)  "Donor registry" means a database that contains records of anatomical
 26    gifts and amendments to or revocations of anatomical gifts.
 27        (9)  "Driver's license" means a license or  permit  issued  by  the  Idaho
 28    transportation  department to operate a vehicle, whether or not conditions are
 29    attached to the license or permit.
 30        (10) "Eye bank" means a person that is licensed, accredited, or  regulated
 31    under  federal  or  state  law  to engage in the recovery, screening, testing,
 32    processing, storage or distribution of human eyes or portions of human eyes.
 33        (11) "Guardian" means a person appointed by  a  court  to  make  decisions
 34    regarding  the  support,  care, education, health or welfare of an individual.
 35    The term does not include a guardian ad litem.
 36        (12) "Hospital" means a facility licensed as a hospital under the  law  of
 37    any  state or a facility operated as a hospital by the United States, a state,
 38    or a subdivision of a state.
 39        (13) "Identification card" means an  identification  card  issued  by  the
 40    Idaho transportation department.
 41        (14) "Know" means to have actual knowledge.
 42        (15) "Minor" means an individual who is under eighteen (18) years of age.
 43        (16) "Organ  procurement  organization"  means  a person designated by the
 44    secretary of the United States department of health and human services  as  an
 45    organ procurement organization.
 46        (17) "Parent"  means  a  parent whose parental rights have not been termi-
 47    nated.
 48        (18) "Part" means an organ, an eye, or tissue of a human being.  The  term
 49    does not include the whole body.
 50        (19) "Person"  means  an  individual, corporation, business trust, estate,
 51    trust, partnership, limited liability  company,  association,  joint  venture,
 52    public  corporation, government or governmental subdivision, agency or instru-
 53    mentality, or any other legal or commercial entity.
 54        (20) "Physician" means an individual authorized to  practice  medicine  or
 55    osteopathy under the law of any state.
                                                                        
                                       3
                                                                        
  1        (21) "Procurement organization" means an eye bank, organ procurement orga-
  2    nization, or tissue bank.
  3        (22) "Prospective donor" means an individual who is dead or near death and
  4    who  has  been  determined  by  a procurement organization to have a part that
  5    could be medically suitable for transplantation, therapy, research  or  educa-
  6    tion. The term does not include an individual who has made a refusal.
  7        (23) "Reasonably  available"  means  able to be contacted by a procurement
  8    organization without undue effort and willing and able to act in a timely man-
  9    ner consistent with existing medical criteria necessary for the making  of  an
 10    anatomical gift.
 11        (24) "Recipient" means an individual into whose body a decedent's part has
 12    been or is intended to be transplanted.
 13        (25) "Record"  means information that is inscribed on a tangible medium or
 14    that is stored in  an  electronic  or  other  medium  and  is  retrievable  in
 15    perceivable form.
 16        (26) "Refusal"  means  a record created under section 39-3407, Idaho Code,
 17    that expressly states an intent to bar other persons from making an anatomical
 18    gift of an individual's body or part.
 19        (27) "Sign" means, with the present intent  to  authenticate  or  adopt  a
 20    record:
 21        (a)  To execute or adopt a tangible symbol; or
 22        (b)  To  attach  to  or  logically associate with the record an electronic
 23        symbol, sound or process.
 24        (28) "State" means a state of the United States, the District of Columbia,
 25    Puerto Rico, the United States Virgin Islands, or  any  territory  or  insular
 26    possession subject to the jurisdiction of the United States.
 27        (29) "Technician" means an individual determined to be qualified to remove
 28    or  process  parts by an appropriate organization that is licensed, accredited
 29    or regulated under federal or state law. The term includes an enucleator.
 30        (30) "Tissue" means a portion of the human body other than an organ or  an
 31    eye.  The term does not include blood unless the blood is donated for the pur-
 32    pose of research or education.
 33        (31) "Tissue bank" means a person that is licensed, accredited,  or  regu-
 34    lated  under  federal or state law to engage in the recovery, screening, test-
 35    ing, processing, storage or distribution of tissue.
 36        (32) "Transplant hospital" means a hospital that  furnishes  organ  trans-
 37    plants and other medical and surgical specialty services required for the care
 38    of transplant patients.
                                                                        
 39        39-3403.  APPLICABILITY.  This  chapter  applies  to an anatomical gift or
 40    amendment to, revocation of, or refusal to make an anatomical  gift,  whenever
 41    made.
                                                                        
 42        39-3404.  WHO  MAY  MAKE  ANATOMICAL GIFT BEFORE DONOR'S DEATH. Subject to
 43    section 39-3408, Idaho Code, an anatomical gift of a donor's body or part  may
 44    be made during the life of the donor for the purpose of transplantation, ther-
 45    apy,  research  or  education in the manner provided in section 39-3405, Idaho
 46    Code, by:
 47        (1)  The donor, if the donor is an adult or if the donor is  a  minor  and
 48    is:
 49        (a)  Emancipated; or
 50        (b)  At  least  sixteen  (16)  years of age, provided however, that if the
 51        donor is sixteen (16) years of age or older and less  than  eighteen  (18)
 52        years of age, a parent or an adult guardian must consent in writing in the
 53        presence of the donor.
                                                                        
                                       4
                                                                        
  1        (2)  An  agent  of the donor, unless the power of attorney for health care
  2    or other record prohibits the agent from making an anatomical gift;
  3        (3)  A parent of the donor, if the donor is an unemancipated minor; or
  4        (4)  The donor's guardian.
                                                                        
  5        39-3405.  MANNER OF MAKING ANATOMICAL GIFT BEFORE  DONOR'S  DEATH.  (1)  A
  6    donor may make an anatomical gift:
  7        (a)  By  authorizing  a  statement or symbol indicating that the donor has
  8        made an anatomical gift to be imprinted on the donor's driver's license or
  9        identification card;
 10        (b)  In a will;
 11        (c)  During a terminal illness or injury of the donor, by any form of com-
 12        munication addressed to at least two (2) adults, at least one (1) of  whom
 13        is a disinterested witness; or
 14        (d)  As provided in subsection (2) of this section.
 15        (2)  A  donor  or other person authorized to make an anatomical gift under
 16    section 39-3404, Idaho Code, may make a gift by a donor card or  other  record
 17    signed  by  the donor or other person making the gift or by authorizing that a
 18    statement or symbol indicating that the donor has made an anatomical  gift  be
 19    included  on  a  donor  registry.  If  the donor or other person is physically
 20    unable to sign a record, the record may be signed by another individual at the
 21    direction of the donor or other person and must:
 22        (a)  Be witnessed by at least two (2) adults, at least one (1) of whom  is
 23        a  disinterested  witness,  who have signed at the request of the donor or
 24        the other person; and
 25        (b)  State that it has been signed and witnessed as provided in  paragraph
 26        (a) of this subsection.
 27        (3)  Revocation,  suspension,  expiration  or  cancellation  of a driver's
 28    license or identification card upon which an anatomical gift is indicated does
 29    not invalidate the gift.
 30        (4)  An anatomical gift made by will takes effect upon the  donor's  death
 31    whether  or  not  the  will  is  probated.  Invalidation of the will after the
 32    donor's death does not invalidate the gift.
                                                                        
 33        39-3406.  AMENDING OR REVOKING ANATOMICAL GIFT BEFORE DONOR'S  DEATH.  (1)
 34    Subject  to section 39-3408, Idaho Code, a donor or other person authorized to
 35    make an anatomical gift under section 39-3404, Idaho Code, may amend or revoke
 36    an anatomical gift by:
 37        (a)  A record signed by:
 38             (i)   The donor;
 39             (ii)  The other person; or
 40             (iii) Subject to subsection (2) of this section,  another  individual
 41             acting at the direction of the donor or the other person if the donor
 42             or other person is physically unable to sign; or
 43        (b)  A  later-executed  document of gift that amends or revokes a previous
 44        anatomical gift or portion of an anatomical gift, either expressly  or  by
 45        inconsistency.
 46        (2)  A  record  signed  pursuant to subsection (1)(a)(iii) of this section
 47    must:
 48        (a)  Be witnessed by at least two (2) adults, at least one (1) of whom  is
 49        a  disinterested  witness,  who have signed at the request of the donor or
 50        the other person; and
 51        (b)  State that it has been signed and witnessed as provided in  paragraph
 52        (a) of this subsection.
 53        (3)  Subject  to  section  39-3408,  Idaho  Code,  a donor or other person
                                                                        
                                       5
                                                                        
  1    authorized to make an anatomical gift under section 39-3404, Idaho  Code,  may
  2    revoke  an  anatomical gift by the destruction or cancellation of the document
  3    of gift, or the portion of the document of gift used to make  the  gift,  with
  4    the intent to revoke the gift.
  5        (4)  A donor may amend or revoke an anatomical gift that was not made in a
  6    will  by  any  form  of  communication  during  a  terminal  illness or injury
  7    addressed to at least two (2) adults, at least one (1) of whom is a  disinter-
  8    ested witness.
  9        (5)  A  donor  who  makes an anatomical gift in a will may amend or revoke
 10    the gift in the manner provided for amendment or revocation  of  wills  or  as
 11    provided in subsection (1) of this section.
                                                                        
 12        39-3407.  REFUSAL  TO  MAKE  ANATOMICAL  GIFT -- EFFECT OF REFUSAL. (1) An
 13    individual may refuse to make an anatomical gift of the individual's  body  or
 14    part by:
 15        (a)  A record signed by:
 16             (i)   The individual; or
 17             (ii)  Subject  to  subsection (2) of this section, another individual
 18             acting at the direction of the individual if the individual is physi-
 19             cally unable to sign;
 20        (b)  The individual's will, whether or not the will is admitted to probate
 21        or invalidated after the individual's death; or
 22        (c)  Any  form  of  communication  made  by  the  individual  during   the
 23        individual's  terminal  illness  or  injury  addressed to at least two (2)
 24        adults, at least one (1) of whom is a disinterested witness.
 25        (2)  A record signed pursuant to subsection  (1)(a)(ii)  of  this  section
 26    must:
 27        (a)  Be  witnessed by at least two (2) adults, at least one (1) of whom is
 28        a disinterested witness, who have signed at the request of the individual;
 29        and
 30        (b)  State that it has been signed and witnessed as provided in  paragraph
 31        (a) of this subsection.
 32        (3)  An individual who has made a refusal may amend or revoke the refusal:
 33        (a)  In the manner provided in subsection (1) of this section for making a
 34        refusal;
 35        (b)  By  subsequently  making  an  anatomical  gift  pursuant  to  section
 36        39-3405, Idaho Code, that is inconsistent with the refusal; or
 37        (c)  By  destroying or canceling the record evidencing the refusal, or the
 38        portion of the record used to make the refusal, with the intent to  revoke
 39        the refusal.
 40        (4)  Except  as  otherwise  provided in section 39-3408(8), Idaho Code, in
 41    the absence of an express, contrary indication by the individual set forth  in
 42    the  refusal,  an individual's unrevoked refusal to make an anatomical gift of
 43    the individual's body or part bars all other persons from making an anatomical
 44    gift of the individual's body or part.
                                                                        
 45        39-3408.  PRECLUSIVE EFFECT OF ANATOMICAL GIFT, AMENDMENT  OR  REVOCATION.
 46    (1) Except as otherwise provided in subsection (7) of this section and subject
 47    to  subsection  (6)  of  this  section, in the absence of an express, contrary
 48    indication by the donor, a person other than the donor is barred from  making,
 49    amending or revoking an anatomical gift of a donor's body or part if the donor
 50    made  an  anatomical  gift  of the donor's body or part under section 39-3405,
 51    Idaho Code, or an amendment to an anatomical gift of the donor's body or  part
 52    under section 39-3406, Idaho Code.
 53        (2)  A  donor's  revocation  of  an anatomical gift of the donor's body or
                                                                        
                                       6
                                                                        
  1    part under section 39-3406, Idaho Code, is not a  refusal  and  does  not  bar
  2    another  person specified in section 39-3404 or 39-3409, Idaho Code, from mak-
  3    ing an anatomical gift of the donor's body or part under  section  39-3405  or
  4    39-3410, Idaho Code.
  5        (3)  If  a  person other than the donor makes an unrevoked anatomical gift
  6    of the donor's body or part under section 39-3405, Idaho Code, or an amendment
  7    to an anatomical gift of the donor's body or part under section 39-3406, Idaho
  8    Code, another person may  not make, amend or revoke the gift  of  the  donor's
  9    body or part under section 39-3410, Idaho Code.
 10        (4)  A  revocation  of  an anatomical gift of a donor's body or part under
 11    section 39-3406, Idaho Code, by a person other than the  donor  does  not  bar
 12    another  person  from making an anatomical gift of the body or part under sec-
 13    tion 39-3405 or 39-3410, Idaho Code.
 14        (5)  In the absence of an express, contrary indication  by  the  donor  or
 15    other  person  authorized  to  make  an anatomical gift under section 39-3404,
 16    Idaho Code, an anatomical gift of a part is neither a refusal to give  another
 17    part nor a limitation on the making of an anatomical gift of another part at a
 18    later time by the donor or another person.
 19        (6)  In  the  absence  of  an express, contrary indication by the donor or
 20    other person authorized to make an  anatomical  gift  under  section  39-3404,
 21    Idaho  Code,  an anatomical gift of a part for one (1) or more of the purposes
 22    set forth in section 39-3404, Idaho Code, is not a limitation on the making of
 23    an anatomical gift of the part for any of the other purposes by the  donor  or
 24    any other person under section 39-3405 or 39-3410, Idaho Code.
 25        (7)  If  a donor who is an unemancipated minor dies, a parent of the donor
 26    who is reasonably available may revoke or amend  an  anatomical  gift  of  the
 27    donor's body or part.
 28        (8)  If  an unemancipated minor who signed a refusal dies, a parent of the
 29    minor who is reasonably available may revoke the minor's refusal.
                                                                        
 30        39-3409.  WHO MAY MAKE ANATOMICAL GIFT OF DECEDENT'S  BODY  OR  PART.  (1)
 31    Subject  to  subsections (2) and (3) of this section and unless barred by sec-
 32    tion 39-3407 or 39-3408, Idaho Code, an anatomical gift of a  decedent's  body
 33    or  part for purpose of transplantation, therapy, research or education may be
 34    made by any member of the following  classes  of  persons  who  is  reasonably
 35    available, in the order of priority listed:
 36        (a)  An  agent of the decedent at the time of death who could have made an
 37        anatomical gift under section 39-3404(2), Idaho Code,  immediately  before
 38        the decedent's death;
 39        (b)  The spouse of the decedent;
 40        (c)  Adult children of the decedent;
 41        (d)  Parents of the decedent;
 42        (e)  Adult siblings of the decedent;
 43        (f)  Adult grandchildren of the decedent;
 44        (g)  Grandparents of the decedent;
 45        (h)  An adult who exhibited special care and concern for the decedent;
 46        (i)  The  persons  who  were  acting as the guardians of the person of the
 47        decedent at the time of death; and
 48        (j)  Any other person having the authority to dispose  of  the  decedent's
 49        body.
 50        (2)  If  there is more than one (1) member of a class listed in subsection
 51    (1)(a), (c), (d), (e), (f), (g) or (i) of this section  entitled  to  make  an
 52    anatomical  gift,  an  anatomical  gift  may  be made by a member of the class
 53    unless that member or a person to  which  the  gift  may  pass  under  section
 54    39-3412,  Idaho Code, knows of an objection by another member of the class. If
                                                                        
                                       7
                                                                        
  1    an objection is known, the gift may be made only by a majority of the  members
  2    of the class who are reasonably available.
  3        (3)  A  person  may  not  make  an  anatomical gift if, at the time of the
  4    decedent's death, a person in a prior class under subsection (1) of this  sec-
  5    tion is reasonably available to make or to object to the making of an anatomi-
  6    cal gift.
                                                                        
  7        39-3410.  MANNER  OF  MAKING,  AMENDING  OR  REVOKING  ANATOMICAL  GIFT OF
  8    DECEDENT'S BODY OR PART. (1) A person authorized to make  an  anatomical  gift
  9    under  section  39-3409, Idaho Code, may make an anatomical gift by a document
 10    of gift signed by the person making the gift or by that person's oral communi-
 11    cation that is electronically recorded or is contemporaneously  reduced  to  a
 12    record and signed by the individual receiving the oral communication.
 13        (2)  Subject  to  subsection  (3) of this section, an anatomical gift by a
 14    person authorized under section 39-3409, Idaho Code, may be amended or revoked
 15    orally or in a record by any member of a prior class who is reasonably  avail-
 16    able.  If more than one (1) member of the prior class is reasonably available,
 17    the gift made by a person authorized under section 39-3409,  Idaho  Code,  may
 18    be:
 19        (a)  Amended  only if a majority of the reasonably available members agree
 20        to the amending of the gift; or
 21        (b)  Revoked only if a majority of the reasonably available members  agree
 22        to  the  revoking of the gift or if they are equally divided as to whether
 23        to revoke the gift.
 24        (3)  A revocation under subsection (2) of this section is  effective  only
 25    if, before an incision has been made to remove a part from the donor's body or
 26    before  invasive  procedures have begun to prepare the recipient, the procure-
 27    ment organization, transplant hospital, or physician or  technician  knows  of
 28    the revocation.
                                                                        
 29        39-3411.  REQUIREMENTS  FOR INFORMED CONSENT. In the absence of a document
 30    of gift or other evidence of an individual's intention to make  or  refuse  to
 31    make  an  anatomical  gift, the following information shall be provided to any
 32    person or persons, listed in section 39-3409, Idaho Code, approached for  pur-
 33    poses of obtaining informed consent:
 34        (1)  A confirmation of the donor's identity and his or her clinical termi-
 35    nal condition;
 36        (2)  A general description of the purposes of anatomical gift donation;
 37        (3)  Identification  of  specific  organs and/or tissues, including cells,
 38    that are being requested for donation, provided that subsequent information on
 39    the specific gifts recovered shall be supplied;
 40        (4)  An explanation that the retrieved organs and/or tissues may  be  used
 41    for transplantation, therapy, medical research or educational purposes;
 42        (5)  A general description of the recovery process including, but not lim-
 43    ited  to,  timing, relocation of the donor if applicable, and contact informa-
 44    tion;
 45        (6)  An explanation that laboratory tests and a medical and/or social his-
 46    tory will be completed to determine the medical suitability of the  donor  and
 47    that  blood  samples  from  the donor will be tested for certain transmissible
 48    diseases, including testing for HIV antibodies or antigens;
 49        (7)  An explanation that the spleen, lymph nodes and blood may be removed,
 50    and cultures may be performed, for the purpose of determining donor  suitabil-
 51    ity and donor and recipient capability;
 52        (8)  A  statement  granting access to the donor's medical records and pro-
 53    viding that the medical records may be released to other appropriate parties;
                                                                        
                                       8
                                                                        
  1        (9)  An explanation that costs directly related to the evaluation,  recov-
  2    ery,  preservation  and  placement  of  the  organs and/or tissues will not be
  3    charged to the family members of the donor;
  4        (10) An explanation of the impact the donation process may have on  burial
  5    arrangements and on the appearance of the donor's body; and
  6        (11) A  statement  that  tissues  or parts may be retrieved and/or used by
  7    for-profit procurement entities.
                                                                        
  8        39-3412.  PERSONS THAT MAY RECEIVE ANATOMICAL GIFT -- PURPOSE OF  ANATOMI-
  9    CAL GIFT. (1) An anatomical gift may be made to the following persons named in
 10    the document of gift:
 11        (a)  A  hospital;  accredited  medical  school, dental school, college, or
 12        university; organ procurement organization; or other  appropriate  person,
 13        for research or education;
 14        (b)  Subject  to  subsection (2) of this section, an individual designated
 15        by the person making the anatomical gift if the individual is the  recipi-
 16        ent of the part;
 17        (c)  An eye bank or tissue bank.
 18        (2)  If  an  anatomical  gift  to an individual under subsection (1)(b) of
 19    this section cannot be transplanted into the individual, the  part  passes  in
 20    accordance  with  subsection (7) of this section in the absence of an express,
 21    contrary indication by the person making the anatomical gift.
 22        (3)  If an anatomical gift of one (1) or more specific  parts  or  of  all
 23    parts  is  made in a document of gift that does not name a person described in
 24    subsection (1) of this section but identifies the purpose for which an anatom-
 25    ical gift may be used, the following rules apply:
 26        (a)  If the part is an eye and the gift is for the purpose of transplanta-
 27        tion or therapy, the gift passes to the appropriate eye bank.
 28        (b)  If the part is tissue and the gift is for the purpose of transplanta-
 29        tion or therapy, the gift passes to the appropriate tissue bank.
 30        (c)  If the part is an organ and the gift is for the purpose of transplan-
 31        tation or therapy, the gift passes to the  appropriate  organ  procurement
 32        organization as custodian of the organ.
 33        (d)  If  the  part  is an organ, an eye, or tissue and the gift is for the
 34        purpose of research or education, the gift passes to the appropriate  pro-
 35        curement organization.
 36        (4)  For  the  purpose of subsection (3) of this section, if there is more
 37    than one (1) purpose of an anatomical gift set forth in the document  of  gift
 38    but  the purposes are not set forth in any priority, the gift must be used for
 39    transplantation or therapy, if suitable. If the gift cannot be used for trans-
 40    plantation or therapy, the gift may be used for research or education.
 41        (5)  If an anatomical gift of one (1) or more specific parts is made in  a
 42    document  of  gift  that does not name a person described in subsection (1) of
 43    this section and does not identify the purpose of the gift, the  gift  may  be
 44    used  only  for  transplantation or therapy, and the gift passes in accordance
 45    with subsection (7) of this section.
 46        (6)  If a document of gift specifies only a general intent to make an ana-
 47    tomical gift by words such as "donor," "organ donor" or "body donor," or by  a
 48    symbol  or  statement  of similar import, the gift may be used only for trans-
 49    plantation or therapy, and the gift passes in accordance with  subsection  (7)
 50    of this section.
 51        (7)  For  purposes  of  subsections  (2), (5) and (6) of this section, the
 52    following rules apply:
 53        (a)  If the part is an eye, the gift passes to the appropriate eye bank.
 54        (b)  If the part is tissue, the gift  passes  to  the  appropriate  tissue
                                                                        
                                       9
                                                                        
  1        bank.
  2        (c)  If  the  part  is  an organ, the gift passes to the appropriate organ
  3        procurement organization as custodian of the organ.
  4        (8)  An anatomical gift of an organ for transplantation or therapy,  other
  5    than an anatomical gift under subsection (1)(b) of this section, passes to the
  6    organ procurement organization as custodian of the organ.
  7        (9)  If  an  anatomical  gift  does  not  pass pursuant to subsections (1)
  8    through (8) of this section or the decedent's body or part  is  not  used  for
  9    transplantation,  therapy,  research or education, custody of the body or part
 10    passes to the person under obligation to dispose of the body or part.
 11        (10) A person may not accept an anatomical gift if the person  knows  that
 12    the  gift  was  not  effectively  made under section 39-3405 or 39-3410, Idaho
 13    Code, or if the person knows that the decedent made a  refusal  under  section
 14    39-3407, Idaho Code, that was not revoked. For purposes of this subsection, if
 15    a  person  knows  that  an anatomical gift was made on a document of gift, the
 16    person is deemed to know of any amendment or revocation of  the  gift  or  any
 17    refusal to make an anatomical gift on the same document of gift.
 18        (11) Except  as  otherwise  provided in subsection (1)(b) of this section,
 19    nothing in this chapter affects the allocation of organs  for  transplantation
 20    or therapy.
                                                                        
 21        39-3413.  SEARCH  AND NOTIFICATION. (1) The following persons shall make a
 22    reasonable search of an individual who the person reasonably believes is  dead
 23    or  near  death  for  a  document of gift or other information identifying the
 24    individual as a donor or as an individual who made a refusal:
 25        (a)  A law enforcement officer, firefighter, paramedic or other  emergency
 26        rescuer finding the individual; and
 27        (b)  If  no  other  source  of the information is immediately available, a
 28        hospital, as soon as practical after the individual's arrival at the  hos-
 29        pital.
 30        (2)  If  a  document  of  gift  or a refusal to make an anatomical gift is
 31    located by the search required by subsection (1)(a) of this  section  and  the
 32    individual  or  deceased individual to whom it relates is taken to a hospital,
 33    the person responsible for conducting the search shall send  the  document  of
 34    gift or refusal to the hospital.
 35        (3)  A person is not subject to criminal or civil liability for failing to
 36    discharge the duties imposed by this section but may be subject to administra-
 37    tive sanctions.
                                                                        
 38        39-3414.  DELIVERY  OF  DOCUMENT OF GIFT NOT REQUIRED -- RIGHT TO EXAMINE.
 39    (1) A document of gift need not be delivered during the donor's lifetime to be
 40    effective.
 41        (2)  Upon or after an individual's death, a person in possession of a doc-
 42    ument of gift or a refusal to make an anatomical  gift  with  respect  to  the
 43    individual  shall  allow  examination  and  copying of the document of gift or
 44    refusal by a person authorized to make or object to the making of an  anatomi-
 45    cal gift with respect to the individual or by a person to which the gift could
 46    pass under section 39-3412, Idaho Code.
                                                                        
 47        39-3415.  RIGHTS  AND  DUTIES  OF PROCUREMENT ORGANIZATION AND OTHERS. (1)
 48    When a hospital refers an individual at or near death to a procurement organi-
 49    zation, the organization shall make a reasonable search of the records of  the
 50    Idaho transportation department and any donor registry that it knows exist for
 51    the geographical area in which the individual resides to ascertain whether the
 52    individual has made an anatomical gift.
                                                                        
                                       10
                                                                        
  1        (2)  A  procurement  organization  must  be  allowed  reasonable access to
  2    information in the records of the Idaho transportation department to ascertain
  3    whether an individual at or near death is a donor.
  4        (3)  When a hospital refers an individual at or near death to  a  procure-
  5    ment  organization,  the  organization  may conduct any reasonable examination
  6    necessary to ensure the medical suitability of a part that is or could be  the
  7    subject of an anatomical gift for transplantation, therapy, research or educa-
  8    tion from a donor or a prospective donor. During  the examination period, mea-
  9    sures necessary to ensure the medical suitability of the part may not be with-
 10    drawn  unless the hospital or procurement organization knows that the individ-
 11    ual expressed a contrary intent.
 12        (4)  Unless prohibited by law other than this chapter, at any time after a
 13    donor's death, the person to which a part passes under section 39-3412,  Idaho
 14    Code,  may  conduct any reasonable examination necessary to ensure the medical
 15    suitability of the body or part for its intended purpose.
 16        (5)  Unless prohibited by law other  than  this  chapter,  an  examination
 17    under  subsection (3) or (4) of this section may include an examination of all
 18    medical and dental records of the donor or prospective donor.
 19        (6)  Upon the death of a minor who  was  a  donor  or  who  had  signed  a
 20    refusal, unless a procurement organization knows the minor is emancipated, the
 21    procurement  organization shall conduct a reasonable search for the parents of
 22    the minor and provide the parents with an opportunity to revoke or  amend  the
 23    anatomical gift or revoke the refusal.
 24        (7)  Upon  referral  by a hospital under subsection (1) of this section, a
 25    procurement organization shall make a reasonable search for any person  listed
 26    in  section 39-3409, Idaho Code, having priority to make an anatomical gift on
 27    behalf of a prospective donor. If a procurement organization receives informa-
 28    tion that an anatomical gift to any other person was made, amended or revoked,
 29    it shall promptly advise the other person of all relevant information.
 30        (8)  Subject to sections 39-3412(9) and 39-3424, Idaho Code, the rights of
 31    the person to which a part passes under section 39-3412, Idaho Code, are supe-
 32    rior to the rights of all others with respect to  the  part.  The  person  may
 33    accept  or reject an anatomical gift in whole or in part. Subject to the terms
 34    of the document of gift and this chapter, a person that accepts an  anatomical
 35    gift  of  an  entire body may allow embalming, burial or cremation, and use of
 36    remains in a funeral service. If the gift is of a part, the  person  to  which
 37    the part passes under section 39-3412, Idaho Code, upon the death of the donor
 38    and  before embalming, burial or cremation, shall cause the part to be removed
 39    without unnecessary mutilation.
 40        (9)  Neither the physician who attends the decedent at death nor the  phy-
 41    sician  who determines the time of the decedent's death may participate in the
 42    procedures for removing or transplanting a part from the decedent.
 43        (10) A physician or technician may remove a donated part from the body  of
 44    a donor that the physician or technician is qualified to remove.
                                                                        
 45        39-3416.  COORDINATION OF PROCUREMENT AND USE. Each hospital in this state
 46    shall enter into agreements or affiliations with procurement organizations for
 47    coordination of procurement and use of anatomical gifts.
                                                                        
 48        39-3417.  SALE  OR  PURCHASE  OF PARTS PROHIBITED. (1) Except as otherwise
 49    provided in subsection (2) of this section, a person that for valuable consid-
 50    eration, knowingly purchases or sells a part for transplantation or therapy if
 51    removal of  a  part  from  an  individual  is  intended  to  occur  after  the
 52    individual's  death  commits a felony and upon conviction is subject to a fine
 53    not exceeding fifty thousand dollars ($50,000) or imprisonment  not  exceeding
                                                                        
                                       11
                                                                        
  1    five (5) years, or both such fine and imprisonment.
  2        (2)  A  person may charge a reasonable amount for the removal, processing,
  3    preservation, quality control, storage, transportation, implantation  or  dis-
  4    posal of a part.
  5        (3)  A  coroner  acting  pursuant  to this section shall not authorize the
  6    removal of a part from a body within the coroner's custody if the coroner,  or
  7    any  deputy or agent of the coroner, derives or may derive any direct or indi-
  8    rect financial benefit relative to the removal, donation or use of the part.
                                                                        
  9        39-3418.  OTHER PROHIBITED ACTS. A person  that,  in  order  to  obtain  a
 10    financial gain, intentionally falsifies, forges, conceals, defaces or obliter-
 11    ates  a document of gift, an amendment or revocation of a document of gift, or
 12    a refusal commits a felony and upon  conviction  is  subject  to  a  fine  not
 13    exceeding  fifty thousand dollars ($50,000) or imprisonment not exceeding five
 14    (5) years, or both such fine and imprisonment.
                                                                        
 15        39-3419.  IMMUNITY. (1) A person that acts in accordance with this chapter
 16    or with the applicable anatomical gift law of another state,  or  attempts  in
 17    good  faith  to  do  so, is not liable for the act in a civil action, criminal
 18    prosecution or administrative proceeding.
 19        (2)  Neither the person making an anatomical gift nor the  donor's  estate
 20    is  liable for any injury or damage that results from the making or use of the
 21    gift.
 22        (3)  In determining whether an anatomical gift has been made,  amended  or
 23    revoked under this chapter, a person may rely upon representations of an indi-
 24    vidual  listed in section 39-3409(1)(b), (c), (d), (e), (f), (g) or (h), Idaho
 25    Code, relating to the individual's relationship to the  donor  or  prospective
 26    donor unless the person knows that the representation is untrue.
                                                                        
 27        39-3420.  LAW GOVERNING VALIDITY -- CHOICE OF LAW AS TO EXECUTION OF DOCU-
 28    MENT  OF  GIFT  -- PRESUMPTION OF VALIDITY. (1) A document of gift is valid if
 29    executed in accordance with:
 30        (a)  This chapter;
 31        (b)  The laws of the state or country where it was executed; or
 32        (c)  The laws of the state or country where the person making the anatomi-
 33        cal gift was domiciled, has a place of residence or was a national at  the
 34        time the document of gift was executed.
 35        (2)  If  a  document  of gift is valid under this section, the law of this
 36    state governs the interpretation of the document of gift.
 37        (3)  A person may presume that a document of gift or amendment of an  ana-
 38    tomical  gift  is  valid unless that person knows that it was not validly exe-
 39    cuted or was revoked.
                                                                        
 40        39-3421.  DONOR REGISTRY. (1) The Idaho  transportation  department  shall
 41    cooperate  with  a  person that administers any donor registry that this state
 42    establishes, contracts for, or recognizes for the purpose of  transferring  to
 43    the donor registry all relevant information regarding a donor's making, amend-
 44    ment to, or revocation of an anatomical gift.
 45        (2)  A donor registry must:
 46        (a)  Allow a donor or other person authorized under section 39-3404, Idaho
 47        Code,  to  include  on  the  donor registry a statement or symbol that the
 48        donor has made, amended or revoked an anatomical gift;
 49        (b)  Be accessible to a procurement organization to  allow  it  to  obtain
 50        relevant  information on the donor registry to determine, at or near death
 51        of the donor or a prospective donor,  whether  the  donor  or  prospective
                                                                        
                                       12
                                                                        
  1        donor has made, amended or revoked an anatomical gift; and
  2        (c)  Be  accessible for purposes of paragraphs (a) and (b) of this subsec-
  3        tion seven (7) days a week on a twenty-four (24) hour basis.
  4        (3)  Personally identifiable information on a donor registry about a donor
  5    or prospective donor shall not be used or disclosed without the  express  con-
  6    sent  of the donor, prospective donor, or person that made the anatomical gift
  7    for any purpose other than to determine, at or near death of the donor or pro-
  8    spective donor, whether the donor or prospective donor has  made,  amended  or
  9    revoked an anatomical gift.
 10        (4)  This  section does not prohibit any person from creating or maintain-
 11    ing a donor registry that is not established by or  under  contract  with  the
 12    state. Any such registry must comply with subsections (2) and (3) of this sec-
 13    tion.
                                                                        
 14        39-3422.  EFFECT  OF ANATOMICAL GIFT ON ADVANCE HEALTH CARE DIRECTIVE. (1)
 15    In this section:
 16        (a)  "Advance health care directive" means a power of attorney for  health
 17        care  or a record signed by a prospective donor containing the prospective
 18        donor's direction concerning a health care decision  for  the  prospective
 19        donor.
 20        (b)  "Declaration" means a record signed by a prospective donor specifying
 21        the  circumstances  under  which  a life support system may be withheld or
 22        withdrawn from the prospective donor.
 23        (c)  "Health care decision" means any decision made regarding  the  health
 24        care of the prospective donor.
 25        (2)  If  a  prospective  donor  has  a  declaration or advance health care
 26    directive, measures necessary to ensure the medical suitability  of  an  organ
 27    for  transplantation or therapy may not be withheld or withdrawn from the pro-
 28    spective donor, unless the declaration expressly provides to the contrary.
                                                                        
 29        39-3423.  COOPERATION BETWEEN CORONER AND PROCUREMENT ORGANIZATION. (1)  A
 30    coroner  shall cooperate with procurement organizations to maximize the oppor-
 31    tunity to recover anatomical gifts for the purpose of  transplantation,  ther-
 32    apy, research or education.
 33        (2)  If  a coroner receives notice from a procurement organization that an
 34    anatomical gift might be available or was made  with  respect  to  a  decedent
 35    whose  body is under the jurisdiction of the coroner and a postmortem examina-
 36    tion is going to be performed, unless the coroner denies  recovery  in  accor-
 37    dance  with section 39-3424, Idaho Code, the coroner or designee shall conduct
 38    a postmortem examination of the body or the part in  a  manner  and  within  a
 39    period compatible with its preservation for the purposes of the gift.
 40        (3)  A  part  may  not  be  removed  from the body of a decedent under the
 41    jurisdiction of a coroner for transplantation, therapy, research or  education
 42    unless  the  part is the subject of an anatomical gift. The body of a decedent
 43    under the jurisdiction of the coroner may not be delivered  to  a  person  for
 44    research  or  education  unless the body is the subject of an anatomical gift.
 45    This subsection does not preclude a coroner from  performing  the  medicolegal
 46    investigation  upon  the body or parts of a decedent under the jurisdiction of
 47    the coroner.
                                                                        
 48        39-3424.  FACILITATION OF ANATOMICAL GIFT  FROM  DECEDENT  WHOSE  BODY  IS
 49    UNDER JURISDICTION OF CORONER. (1) Upon request of a procurement organization,
 50    a  coroner  shall  release  to  the procurement organization the name, contact
 51    information and available medical and social history of a decedent whose  body
 52    is  under  the  jurisdiction of the coroner. If the decedent's body or part is
                                                                        
                                       13
                                                                        
  1    medically suitable for transplantation, therapy, research  or  education,  the
  2    coroner  shall release postmortem examination results to the procurement orga-
  3    nization. The procurement organization may make a subsequent disclosure of the
  4    postmortem examination results or other information received from the  coroner
  5    only if relevant to transplantation or therapy.
  6        (2)  The  coroner  may  conduct a medicolegal examination by reviewing all
  7    medical records, laboratory test results, x-rays,  other  diagnostic  results,
  8    and  other  information that any person possesses about a donor or prospective
  9    donor whose body is under the jurisdiction of the coroner  which  the  coroner
 10    determines may be relevant to the investigation.
 11        (3)  A  person that has any information requested by a coroner pursuant to
 12    subsection (2) of this section shall provide that information as expeditiously
 13    as possible to allow the coroner  to  conduct  the  medicolegal  investigation
 14    within  a  period compatible with the preservation of parts for the purpose of
 15    transplantation, therapy, research or education.
 16        (4)  If an anatomical gift has been or might be made of a part of a  dece-
 17    dent  whose  body  is  under  the jurisdiction of the coroner and a postmortem
 18    examination is not required, or the coroner determines that a postmortem exam-
 19    ination is required but that the recovery of the part that is the  subject  of
 20    an  anatomical  gift  will not interfere with the examination, the coroner and
 21    procurement organization shall cooperate in the timely  removal  of  the  part
 22    from  the  decedent  for  the purpose of transplantation, therapy, research or
 23    education.
 24        (5)  If an anatomical gift of a part from the decedent under the jurisdic-
 25    tion of the coroner has been or might  be  made,  but  the  coroner  initially
 26    believes  that  the  recovery  of the part could interfere with the postmortem
 27    investigation into the decedent's cause or manner of death, the coroner  shall
 28    consult  with  the  procurement organization or physician or technician desig-
 29    nated by the procurement organization about the proposed recovery. After  con-
 30    sultation, the coroner may allow the recovery.
 31        (6)  Following  the  consultation under subsection (5) of this section, in
 32    the absence of mutually agreed-upon protocols to resolve conflict between  the
 33    coroner  and  the  procurement  organization,  if  the coroner intends to deny
 34    recovery, the coroner or designee, at the request of the procurement organiza-
 35    tion, shall attend the removal procedure for the part before  making  a  final
 36    determination  not  to allow the procurement organization to recover the part.
 37    During the removal procedure, the coroner or designee may  allow  recovery  by
 38    the  procurement  organization to proceed, or, if the coroner or designee rea-
 39    sonably believes that the part may be involved in determining  the  decedent's
 40    cause or manner of death, deny recovery by the procurement organization.
 41        (7)  If  the  coroner  or designee denies recovery under subsection (6) of
 42    this section, the coroner or designee shall:
 43        (a)  Explain in a record the specific reasons for not allowing recovery of
 44        the part;
 45        (b)  Include the specific reasons in the records of the coroner; and
 46        (c)  Provide a record with the specific reasons to the procurement organi-
 47        zation.
 48        (8)  If the coroner or designee allows recovery of a part under subsection
 49    (4), (5) or (6) of this section, the procurement organization,  upon  request,
 50    shall  cause  the  physician or technician who removes the part to provide the
 51    coroner with a record describing the condition of the part, a biopsy, a photo-
 52    graph, and any other information and observations that  would  assist  in  the
 53    postmortem examination.
 54        (9)  If  a coroner or designee is required to be present at a removal pro-
 55    cedure under subsection (6) of this  section,  upon  request  the  procurement
                                                                        
                                       14
                                                                        
  1    organization  requesting  the recovery of the part shall reimburse the coroner
  2    or designee for the additional costs incurred in complying with subsection (6)
  3    of this section.
                                                                        
  4        39-3425.  UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con-
  5    struing this uniform act, consideration must be given to the need  to  promote
  6    uniformity  of  the  law  with respect to its subject matter among states that
  7    enact it.
                                                                        
  8        39-3426.  RELATION TO ELECTRONIC SIGNATURES IN GLOBAL  AND  NATIONAL  COM-
  9    MERCE  ACT. This chapter modifies, limits and supersedes the electronic signa-
 10    tures in global and national commerce act, 15 U.S.C. section 7001 et seq., but
 11    does not modify, limit or supersede section 101(a) of that  act  or  authorize
 12    electronic  delivery of any of the notices described in section 103(b) of that
 13    act.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                                     Moved by    Davis               
                                                                        
                                                     Seconded by Hill                
                                                                        
                                                                        
                                       IN THE SENATE
                             SENATE AMENDMENT TO S.B. NO. 1017
                                                                        
                                                                        
  1                               AMENDMENTS TO SECTION 2
  2        On page 10 of the printed bill, in line 30, delete "and 39-3424"; on  page
  3    12, delete lines 33 through 39; in line 40, delete "(3)" and insert: "(2)"; in
  4    line 42, following "gift" insert: "and the removal will not interfere with any
  5    autopsy  or  investigation";  delete  lines  48 through 52; on page 13, delete
  6    lines 1 through 55; on page 14, delete lines 1 through 3; in  line  4,  delete
  7    "39-3425"  and  insert: "39-3424"; and in line 8, delete "39-3426" and insert:
  8    "39-3425".
                                                                        
  9                               CORRECTION TO THE TITLE
 10        On page 1, delete lines 26 and 27 and insert: "PROVIDE FOR UNIFORMITY".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                              SENATE BILL NO. 1017, As Amended
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ANATOMICAL GIFTS; REPEALING CHAPTER  34,  TITLE  39,  IDAHO  CODE,
  3        RELATING  TO  THE  IDAHO ANATOMICAL GIFT ACT; AND AMENDING TITLE 39, IDAHO
  4        CODE, BY THE ADDITION OF A NEW CHAPTER 34, TITLE 39, IDAHO  CODE,  TO  SET
  5        FORTH  THE  REVISED UNIFORM ANATOMICAL GIFT ACT, TO PROVIDE A SHORT TITLE,
  6        TO DEFINE TERMS, TO PROVIDE APPLICABILITY, TO SET FORTH WHO  MAY  MAKE  AN
  7        ANATOMICAL  GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR THE MANNER OF MAK-
  8        ING AN ANATOMICAL GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR AMENDING  OR
  9        REVOKING AN ANATOMICAL GIFT BEFORE A DONOR'S DEATH, TO PROVIDE FOR REFUSAL
 10        TO  MAKE AN ANATOMICAL GIFT AND THE EFFECT OF SUCH REFUSAL, TO PROVIDE FOR
 11        PRECLUSIVE EFFECT OF ANATOMICAL GIFT,  AMENDMENT  OR  REVOCATION,  TO  SET
 12        FORTH WHO MAY MAKE AN ANATOMICAL GIFT OF A DECEDENT'S BODY OR PART, TO SET
 13        FORTH  THE  MANNER OF MAKING, AMENDING OR REVOKING AN ANATOMICAL GIFT OF A
 14        DECEDENT'S BODY OR PART, TO SET FORTH REQUIREMENTS FOR  INFORMED  CONSENT,
 15        TO  SET  FORTH PERSONS THAT MAY RECEIVE AN ANATOMICAL GIFT AND THE PURPOSE
 16        OF SUCH GIFT, TO REQUIRE SEARCH AND  NOTIFICATION,  TO  PROVIDE  THAT  THE
 17        DELIVERY  OF  A DOCUMENT OF GIFT IS NOT REQUIRED, TO PROVIDE FOR THE RIGHT
 18        TO EXAMINE A DOCUMENT OF GIFT OR REFUSAL, TO SET FORTH RIGHTS  AND  DUTIES
 19        OF  PROCUREMENT  ORGANIZATIONS  AND OTHERS, TO PROVIDE FOR COORDINATION OF
 20        PROCUREMENT AND USE, TO PROHIBIT THE SALE OR PURCHASE OF  PARTS,  TO  PRO-
 21        HIBIT OTHER ACTS, TO PROVIDE IMMUNITY, TO PROVIDE FOR LAW GOVERNING VALID-
 22        ITY  OF  A DOCUMENT OF GIFT, TO PROVIDE FOR CHOICE OF LAW, TO PROVIDE PRE-
 23        SUMPTION OF VALIDITY, TO PROVIDE FOR A DONOR REGISTRY, TO  SET  FORTH  THE
 24        EFFECT  OF  AN  ANATOMICAL  GIFT  ON  AN ADVANCE HEALTH CARE DIRECTIVE, TO
 25        REQUIRE COOPERATION BETWEEN THE CORONER AND PROCUREMENT  ORGANIZATION,  TO
 26        PROVIDE  FOR UNIFORMITY OF APPLICATION AND CONSTRUCTION AND TO PROVIDE FOR
 27        RELATION TO THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.
                                                                        
 28    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 29        SECTION 1.  That Chapter 34, Title 39, Idaho Code, be,  and  the  same  is
 30    hereby repealed.
                                                                        
 31        SECTION  2.  That Title 39, Idaho Code, be, and the same is hereby amended
 32    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
 33    ter 34, Title 39, Idaho Code, and to read as follows:
                                                                        
 34                                      CHAPTER 34
 35                         REVISED UNIFORM ANATOMICAL GIFT ACT
                                                                        
 36        39-3401.  SHORT TITLE. This chapter shall be known and may be cited as the
 37    "Revised Uniform Anatomical Gift Act."
                                                                        
 38        39-3402.  DEFINITIONS. In this chapter:
 39        (1)  "Adult"  means  an  individual who is at least eighteen (18) years of
 40    age.
                                                                        
                                       2
                                                                        
  1        (2)  "Agent" means an individual:
  2        (a)  Authorized to make health care decisions on the principal's behalf by
  3        a power of attorney for health care; or
  4        (b)  Expressly authorized to make an anatomical gift  on  the  principal's
  5        behalf by any other record signed by the principal.
  6        (3)  "Anatomical  gift" means a donation of all or part of a human body to
  7    take effect after the donor's death for the purpose of transplantation,  ther-
  8    apy, research or education.
  9        (4)  "Decedent"  means  a deceased individual whose body or part is or may
 10    be the source of an anatomical gift. The term includes a stillborn infant and,
 11    subject to restrictions imposed by law other than this chapter, a fetus.
 12        (5)  "Disinterested witness" means a witness other than the spouse, child,
 13    parent, sibling, grandchild, grandparent or guardian  of  the  individual  who
 14    makes, amends, revokes or refuses to make an anatomical gift, or another adult
 15    who  exhibited  special care and concern for the individual. The term does not
 16    include a person to which an anatomical gift could pass under section 39-3412,
 17    Idaho Code.
 18        (6)  "Document of gift" means a donor card or other record used to make an
 19    anatomical gift. The term  includes  a  statement  or  symbol  on  a  driver's
 20    license, identification card or donor registry.
 21        (7)  "Donor"  means  an individual whose body or part is the subject of an
 22    anatomical gift.
 23        (8)  "Donor registry" means a database that contains records of anatomical
 24    gifts and amendments to or revocations of anatomical gifts.
 25        (9)  "Driver's license" means a license or  permit  issued  by  the  Idaho
 26    transportation  department to operate a vehicle, whether or not conditions are
 27    attached to the license or permit.
 28        (10) "Eye bank" means a person that is licensed, accredited, or  regulated
 29    under  federal  or  state  law  to engage in the recovery, screening, testing,
 30    processing, storage or distribution of human eyes or portions of human eyes.
 31        (11) "Guardian" means a person appointed by  a  court  to  make  decisions
 32    regarding  the  support,  care, education, health or welfare of an individual.
 33    The term does not include a guardian ad litem.
 34        (12) "Hospital" means a facility licensed as a hospital under the  law  of
 35    any  state or a facility operated as a hospital by the United States, a state,
 36    or a subdivision of a state.
 37        (13) "Identification card" means an  identification  card  issued  by  the
 38    Idaho transportation department.
 39        (14) "Know" means to have actual knowledge.
 40        (15) "Minor" means an individual who is under eighteen (18) years of age.
 41        (16) "Organ  procurement  organization"  means  a person designated by the
 42    secretary of the United States department of health and human services  as  an
 43    organ procurement organization.
 44        (17) "Parent"  means  a  parent whose parental rights have not been termi-
 45    nated.
 46        (18) "Part" means an organ, an eye, or tissue of a human being.  The  term
 47    does not include the whole body.
 48        (19) "Person"  means  an  individual, corporation, business trust, estate,
 49    trust, partnership, limited liability  company,  association,  joint  venture,
 50    public  corporation, government or governmental subdivision, agency or instru-
 51    mentality, or any other legal or commercial entity.
 52        (20) "Physician" means an individual authorized to  practice  medicine  or
 53    osteopathy under the law of any state.
 54        (21) "Procurement organization" means an eye bank, organ procurement orga-
 55    nization, or tissue bank.
                                                                        
                                       3
                                                                        
  1        (22) "Prospective donor" means an individual who is dead or near death and
  2    who  has  been  determined  by  a procurement organization to have a part that
  3    could be medically suitable for transplantation, therapy, research  or  educa-
  4    tion. The term does not include an individual who has made a refusal.
  5        (23) "Reasonably  available"  means  able to be contacted by a procurement
  6    organization without undue effort and willing and able to act in a timely man-
  7    ner consistent with existing medical criteria necessary for the making  of  an
  8    anatomical gift.
  9        (24) "Recipient" means an individual into whose body a decedent's part has
 10    been or is intended to be transplanted.
 11        (25) "Record"  means information that is inscribed on a tangible medium or
 12    that is stored in  an  electronic  or  other  medium  and  is  retrievable  in
 13    perceivable form.
 14        (26) "Refusal"  means  a record created under section 39-3407, Idaho Code,
 15    that expressly states an intent to bar other persons from making an anatomical
 16    gift of an individual's body or part.
 17        (27) "Sign" means, with the present intent  to  authenticate  or  adopt  a
 18    record:
 19        (a)  To execute or adopt a tangible symbol; or
 20        (b)  To  attach  to  or  logically associate with the record an electronic
 21        symbol, sound or process.
 22        (28) "State" means a state of the United States, the District of Columbia,
 23    Puerto Rico, the United States Virgin Islands, or  any  territory  or  insular
 24    possession subject to the jurisdiction of the United States.
 25        (29) "Technician" means an individual determined to be qualified to remove
 26    or  process  parts by an appropriate organization that is licensed, accredited
 27    or regulated under federal or state law. The term includes an enucleator.
 28        (30) "Tissue" means a portion of the human body other than an organ or  an
 29    eye.  The term does not include blood unless the blood is donated for the pur-
 30    pose of research or education.
 31        (31) "Tissue bank" means a person that is licensed, accredited,  or  regu-
 32    lated  under  federal or state law to engage in the recovery, screening, test-
 33    ing, processing, storage or distribution of tissue.
 34        (32) "Transplant hospital" means a hospital that  furnishes  organ  trans-
 35    plants and other medical and surgical specialty services required for the care
 36    of transplant patients.
                                                                        
 37        39-3403.  APPLICABILITY.  This  chapter  applies  to an anatomical gift or
 38    amendment to, revocation of, or refusal to make an anatomical  gift,  whenever
 39    made.
                                                                        
 40        39-3404.  WHO  MAY  MAKE  ANATOMICAL GIFT BEFORE DONOR'S DEATH. Subject to
 41    section 39-3408, Idaho Code, an anatomical gift of a donor's body or part  may
 42    be made during the life of the donor for the purpose of transplantation, ther-
 43    apy,  research  or  education in the manner provided in section 39-3405, Idaho
 44    Code, by:
 45        (1)  The donor, if the donor is an adult or if the donor is  a  minor  and
 46    is:
 47        (a)  Emancipated; or
 48        (b)  At  least  sixteen  (16)  years of age, provided however, that if the
 49        donor is sixteen (16) years of age or older and less  than  eighteen  (18)
 50        years of age, a parent or an adult guardian must consent in writing in the
 51        presence of the donor.
 52        (2)  An  agent  of the donor, unless the power of attorney for health care
 53    or other record prohibits the agent from making an anatomical gift;
                                                                        
                                       4
                                                                        
  1        (3)  A parent of the donor, if the donor is an unemancipated minor; or
  2        (4)  The donor's guardian.
                                                                        
  3        39-3405.  MANNER OF MAKING ANATOMICAL GIFT BEFORE  DONOR'S  DEATH.  (1)  A
  4    donor may make an anatomical gift:
  5        (a)  By  authorizing  a  statement or symbol indicating that the donor has
  6        made an anatomical gift to be imprinted on the donor's driver's license or
  7        identification card;
  8        (b)  In a will;
  9        (c)  During a terminal illness or injury of the donor, by any form of com-
 10        munication addressed to at least two (2) adults, at least one (1) of  whom
 11        is a disinterested witness; or
 12        (d)  As provided in subsection (2) of this section.
 13        (2)  A  donor  or other person authorized to make an anatomical gift under
 14    section 39-3404, Idaho Code, may make a gift by a donor card or  other  record
 15    signed  by  the donor or other person making the gift or by authorizing that a
 16    statement or symbol indicating that the donor has made an anatomical  gift  be
 17    included  on  a  donor  registry.  If  the donor or other person is physically
 18    unable to sign a record, the record may be signed by another individual at the
 19    direction of the donor or other person and must:
 20        (a)  Be witnessed by at least two (2) adults, at least one (1) of whom  is
 21        a  disinterested  witness,  who have signed at the request of the donor or
 22        the other person; and
 23        (b)  State that it has been signed and witnessed as provided in  paragraph
 24        (a) of this subsection.
 25        (3)  Revocation,  suspension,  expiration  or  cancellation  of a driver's
 26    license or identification card upon which an anatomical gift is indicated does
 27    not invalidate the gift.
 28        (4)  An anatomical gift made by will takes effect upon the  donor's  death
 29    whether  or  not  the  will  is  probated.  Invalidation of the will after the
 30    donor's death does not invalidate the gift.
                                                                        
 31        39-3406.  AMENDING OR REVOKING ANATOMICAL GIFT BEFORE DONOR'S  DEATH.  (1)
 32    Subject  to section 39-3408, Idaho Code, a donor or other person authorized to
 33    make an anatomical gift under section 39-3404, Idaho Code, may amend or revoke
 34    an anatomical gift by:
 35        (a)  A record signed by:
 36             (i)   The donor;
 37             (ii)  The other person; or
 38             (iii) Subject to subsection (2) of this section,  another  individual
 39             acting at the direction of the donor or the other person if the donor
 40             or other person is physically unable to sign; or
 41        (b)  A  later-executed  document of gift that amends or revokes a previous
 42        anatomical gift or portion of an anatomical gift, either expressly  or  by
 43        inconsistency.
 44        (2)  A  record  signed  pursuant to subsection (1)(a)(iii) of this section
 45    must:
 46        (a)  Be witnessed by at least two (2) adults, at least one (1) of whom  is
 47        a  disinterested  witness,  who have signed at the request of the donor or
 48        the other person; and
 49        (b)  State that it has been signed and witnessed as provided in  paragraph
 50        (a) of this subsection.
 51        (3)  Subject  to  section  39-3408,  Idaho  Code,  a donor or other person
 52    authorized to make an anatomical gift under section 39-3404, Idaho  Code,  may
 53    revoke  an  anatomical gift by the destruction or cancellation of the document
                                                                        
                                       5
                                                                        
  1    of gift, or the portion of the document of gift used to make  the  gift,  with
  2    the intent to revoke the gift.
  3        (4)  A donor may amend or revoke an anatomical gift that was not made in a
  4    will  by  any  form  of  communication  during  a  terminal  illness or injury
  5    addressed to at least two (2) adults, at least one (1) of whom is a  disinter-
  6    ested witness.
  7        (5)  A  donor  who  makes an anatomical gift in a will may amend or revoke
  8    the gift in the manner provided for amendment or revocation  of  wills  or  as
  9    provided in subsection (1) of this section.
                                                                        
 10        39-3407.  REFUSAL  TO  MAKE  ANATOMICAL  GIFT -- EFFECT OF REFUSAL. (1) An
 11    individual may refuse to make an anatomical gift of the individual's  body  or
 12    part by:
 13        (a)  A record signed by:
 14             (i)   The individual; or
 15             (ii)  Subject  to  subsection (2) of this section, another individual
 16             acting at the direction of the individual if the individual is physi-
 17             cally unable to sign;
 18        (b)  The individual's will, whether or not the will is admitted to probate
 19        or invalidated after the individual's death; or
 20        (c)  Any  form  of  communication  made  by  the  individual  during   the
 21        individual's  terminal  illness  or  injury  addressed to at least two (2)
 22        adults, at least one (1) of whom is a disinterested witness.
 23        (2)  A record signed pursuant to subsection  (1)(a)(ii)  of  this  section
 24    must:
 25        (a)  Be  witnessed by at least two (2) adults, at least one (1) of whom is
 26        a disinterested witness, who have signed at the request of the individual;
 27        and
 28        (b)  State that it has been signed and witnessed as provided in  paragraph
 29        (a) of this subsection.
 30        (3)  An individual who has made a refusal may amend or revoke the refusal:
 31        (a)  In the manner provided in subsection (1) of this section for making a
 32        refusal;
 33        (b)  By  subsequently  making  an  anatomical  gift  pursuant  to  section
 34        39-3405, Idaho Code, that is inconsistent with the refusal; or
 35        (c)  By  destroying or canceling the record evidencing the refusal, or the
 36        portion of the record used to make the refusal, with the intent to  revoke
 37        the refusal.
 38        (4)  Except  as  otherwise  provided in section 39-3408(8), Idaho Code, in
 39    the absence of an express, contrary indication by the individual set forth  in
 40    the  refusal,  an individual's unrevoked refusal to make an anatomical gift of
 41    the individual's body or part bars all other persons from making an anatomical
 42    gift of the individual's body or part.
                                                                        
 43        39-3408.  PRECLUSIVE EFFECT OF ANATOMICAL GIFT, AMENDMENT  OR  REVOCATION.
 44    (1) Except as otherwise provided in subsection (7) of this section and subject
 45    to  subsection  (6)  of  this  section, in the absence of an express, contrary
 46    indication by the donor, a person other than the donor is barred from  making,
 47    amending or revoking an anatomical gift of a donor's body or part if the donor
 48    made  an  anatomical  gift  of the donor's body or part under section 39-3405,
 49    Idaho Code, or an amendment to an anatomical gift of the donor's body or  part
 50    under section 39-3406, Idaho Code.
 51        (2)  A  donor's  revocation  of  an anatomical gift of the donor's body or
 52    part under section 39-3406, Idaho Code, is not a  refusal  and  does  not  bar
 53    another  person specified in section 39-3404 or 39-3409, Idaho Code, from mak-
                                                                        
                                       6
                                                                        
  1    ing an anatomical gift of the donor's body or part under  section  39-3405  or
  2    39-3410, Idaho Code.
  3        (3)  If  a  person other than the donor makes an unrevoked anatomical gift
  4    of the donor's body or part under section 39-3405, Idaho Code, or an amendment
  5    to an anatomical gift of the donor's body or part under section 39-3406, Idaho
  6    Code, another person may  not make, amend or revoke the gift  of  the  donor's
  7    body or part under section 39-3410, Idaho Code.
  8        (4)  A  revocation  of  an anatomical gift of a donor's body or part under
  9    section 39-3406, Idaho Code, by a person other than the  donor  does  not  bar
 10    another  person  from making an anatomical gift of the body or part under sec-
 11    tion 39-3405 or 39-3410, Idaho Code.
 12        (5)  In the absence of an express, contrary indication  by  the  donor  or
 13    other  person  authorized  to  make  an anatomical gift under section 39-3404,
 14    Idaho Code, an anatomical gift of a part is neither a refusal to give  another
 15    part nor a limitation on the making of an anatomical gift of another part at a
 16    later time by the donor or another person.
 17        (6)  In  the  absence  of  an express, contrary indication by the donor or
 18    other person authorized to make an  anatomical  gift  under  section  39-3404,
 19    Idaho  Code,  an anatomical gift of a part for one (1) or more of the purposes
 20    set forth in section 39-3404, Idaho Code, is not a limitation on the making of
 21    an anatomical gift of the part for any of the other purposes by the  donor  or
 22    any other person under section 39-3405 or 39-3410, Idaho Code.
 23        (7)  If  a donor who is an unemancipated minor dies, a parent of the donor
 24    who is reasonably available may revoke or amend  an  anatomical  gift  of  the
 25    donor's body or part.
 26        (8)  If  an unemancipated minor who signed a refusal dies, a parent of the
 27    minor who is reasonably available may revoke the minor's refusal.
                                                                        
 28        39-3409.  WHO MAY MAKE ANATOMICAL GIFT OF DECEDENT'S  BODY  OR  PART.  (1)
 29    Subject  to  subsections (2) and (3) of this section and unless barred by sec-
 30    tion 39-3407 or 39-3408, Idaho Code, an anatomical gift of a  decedent's  body
 31    or  part for purpose of transplantation, therapy, research or education may be
 32    made by any member of the following  classes  of  persons  who  is  reasonably
 33    available, in the order of priority listed:
 34        (a)  An  agent of the decedent at the time of death who could have made an
 35        anatomical gift under section 39-3404(2), Idaho Code,  immediately  before
 36        the decedent's death;
 37        (b)  The spouse of the decedent;
 38        (c)  Adult children of the decedent;
 39        (d)  Parents of the decedent;
 40        (e)  Adult siblings of the decedent;
 41        (f)  Adult grandchildren of the decedent;
 42        (g)  Grandparents of the decedent;
 43        (h)  An adult who exhibited special care and concern for the decedent;
 44        (i)  The  persons  who  were  acting as the guardians of the person of the
 45        decedent at the time of death; and
 46        (j)  Any other person having the authority to dispose  of  the  decedent's
 47        body.
 48        (2)  If  there is more than one (1) member of a class listed in subsection
 49    (1)(a), (c), (d), (e), (f), (g) or (i) of this section  entitled  to  make  an
 50    anatomical  gift,  an  anatomical  gift  may  be made by a member of the class
 51    unless that member or a person to  which  the  gift  may  pass  under  section
 52    39-3412,  Idaho Code, knows of an objection by another member of the class. If
 53    an objection is known, the gift may be made only by a majority of the  members
 54    of the class who are reasonably available.
                                                                        
                                       7
                                                                        
  1        (3)  A  person  may  not  make  an  anatomical gift if, at the time of the
  2    decedent's death, a person in a prior class under subsection (1) of this  sec-
  3    tion is reasonably available to make or to object to the making of an anatomi-
  4    cal gift.
                                                                        
  5        39-3410.  MANNER  OF  MAKING,  AMENDING  OR  REVOKING  ANATOMICAL  GIFT OF
  6    DECEDENT'S BODY OR PART. (1) A person authorized to make  an  anatomical  gift
  7    under  section  39-3409, Idaho Code, may make an anatomical gift by a document
  8    of gift signed by the person making the gift or by that person's oral communi-
  9    cation that is electronically recorded or is contemporaneously  reduced  to  a
 10    record and signed by the individual receiving the oral communication.
 11        (2)  Subject  to  subsection  (3) of this section, an anatomical gift by a
 12    person authorized under section 39-3409, Idaho Code, may be amended or revoked
 13    orally or in a record by any member of a prior class who is reasonably  avail-
 14    able.  If more than one (1) member of the prior class is reasonably available,
 15    the gift made by a person authorized under section 39-3409,  Idaho  Code,  may
 16    be:
 17        (a)  Amended  only if a majority of the reasonably available members agree
 18        to the amending of the gift; or
 19        (b)  Revoked only if a majority of the reasonably available members  agree
 20        to  the  revoking of the gift or if they are equally divided as to whether
 21        to revoke the gift.
 22        (3)  A revocation under subsection (2) of this section is  effective  only
 23    if, before an incision has been made to remove a part from the donor's body or
 24    before  invasive  procedures have begun to prepare the recipient, the procure-
 25    ment organization, transplant hospital, or physician or  technician  knows  of
 26    the revocation.
                                                                        
 27        39-3411.  REQUIREMENTS  FOR INFORMED CONSENT. In the absence of a document
 28    of gift or other evidence of an individual's intention to make  or  refuse  to
 29    make  an  anatomical  gift, the following information shall be provided to any
 30    person or persons, listed in section 39-3409, Idaho Code, approached for  pur-
 31    poses of obtaining informed consent:
 32        (1)  A confirmation of the donor's identity and his or her clinical termi-
 33    nal condition;
 34        (2)  A general description of the purposes of anatomical gift donation;
 35        (3)  Identification  of  specific  organs and/or tissues, including cells,
 36    that are being requested for donation, provided that subsequent information on
 37    the specific gifts recovered shall be supplied;
 38        (4)  An explanation that the retrieved organs and/or tissues may  be  used
 39    for transplantation, therapy, medical research or educational purposes;
 40        (5)  A general description of the recovery process including, but not lim-
 41    ited  to,  timing, relocation of the donor if applicable, and contact informa-
 42    tion;
 43        (6)  An explanation that laboratory tests and a medical and/or social his-
 44    tory will be completed to determine the medical suitability of the  donor  and
 45    that  blood  samples  from  the donor will be tested for certain transmissible
 46    diseases, including testing for HIV antibodies or antigens;
 47        (7)  An explanation that the spleen, lymph nodes and blood may be removed,
 48    and cultures may be performed, for the purpose of determining donor  suitabil-
 49    ity and donor and recipient capability;
 50        (8)  A  statement  granting access to the donor's medical records and pro-
 51    viding that the medical records may be released to other appropriate parties;
 52        (9)  An explanation that costs directly related to the evaluation,  recov-
 53    ery,  preservation  and  placement  of  the  organs and/or tissues will not be
                                                                        
                                       8
                                                                        
  1    charged to the family members of the donor;
  2        (10) An explanation of the impact the donation process may have on  burial
  3    arrangements and on the appearance of the donor's body; and
  4        (11) A  statement  that  tissues  or parts may be retrieved and/or used by
  5    for-profit procurement entities.
                                                                        
  6        39-3412.  PERSONS THAT MAY RECEIVE ANATOMICAL GIFT -- PURPOSE OF  ANATOMI-
  7    CAL GIFT. (1) An anatomical gift may be made to the following persons named in
  8    the document of gift:
  9        (a)  A  hospital;  accredited  medical  school, dental school, college, or
 10        university; organ procurement organization; or other  appropriate  person,
 11        for research or education;
 12        (b)  Subject  to  subsection (2) of this section, an individual designated
 13        by the person making the anatomical gift if the individual is the  recipi-
 14        ent of the part;
 15        (c)  An eye bank or tissue bank.
 16        (2)  If  an  anatomical  gift  to an individual under subsection (1)(b) of
 17    this section cannot be transplanted into the individual, the  part  passes  in
 18    accordance  with  subsection (7) of this section in the absence of an express,
 19    contrary indication by the person making the anatomical gift.
 20        (3)  If an anatomical gift of one (1) or more specific  parts  or  of  all
 21    parts  is  made in a document of gift that does not name a person described in
 22    subsection (1) of this section but identifies the purpose for which an anatom-
 23    ical gift may be used, the following rules apply:
 24        (a)  If the part is an eye and the gift is for the purpose of transplanta-
 25        tion or therapy, the gift passes to the appropriate eye bank.
 26        (b)  If the part is tissue and the gift is for the purpose of transplanta-
 27        tion or therapy, the gift passes to the appropriate tissue bank.
 28        (c)  If the part is an organ and the gift is for the purpose of transplan-
 29        tation or therapy, the gift passes to the  appropriate  organ  procurement
 30        organization as custodian of the organ.
 31        (d)  If  the  part  is an organ, an eye, or tissue and the gift is for the
 32        purpose of research or education, the gift passes to the appropriate  pro-
 33        curement organization.
 34        (4)  For  the  purpose of subsection (3) of this section, if there is more
 35    than one (1) purpose of an anatomical gift set forth in the document  of  gift
 36    but  the purposes are not set forth in any priority, the gift must be used for
 37    transplantation or therapy, if suitable. If the gift cannot be used for trans-
 38    plantation or therapy, the gift may be used for research or education.
 39        (5)  If an anatomical gift of one (1) or more specific parts is made in  a
 40    document  of  gift  that does not name a person described in subsection (1) of
 41    this section and does not identify the purpose of the gift, the  gift  may  be
 42    used  only  for  transplantation or therapy, and the gift passes in accordance
 43    with subsection (7) of this section.
 44        (6)  If a document of gift specifies only a general intent to make an ana-
 45    tomical gift by words such as "donor," "organ donor" or "body donor," or by  a
 46    symbol  or  statement  of similar import, the gift may be used only for trans-
 47    plantation or therapy, and the gift passes in accordance with  subsection  (7)
 48    of this section.
 49        (7)  For  purposes  of  subsections  (2), (5) and (6) of this section, the
 50    following rules apply:
 51        (a)  If the part is an eye, the gift passes to the appropriate eye bank.
 52        (b)  If the part is tissue, the gift  passes  to  the  appropriate  tissue
 53        bank.
 54        (c)  If  the  part  is  an organ, the gift passes to the appropriate organ
                                                                        
                                       9
                                                                        
  1        procurement organization as custodian of the organ.
  2        (8)  An anatomical gift of an organ for transplantation or therapy,  other
  3    than an anatomical gift under subsection (1)(b) of this section, passes to the
  4    organ procurement organization as custodian of the organ.
  5        (9)  If  an  anatomical  gift  does  not  pass pursuant to subsections (1)
  6    through (8) of this section or the decedent's body or part  is  not  used  for
  7    transplantation,  therapy,  research or education, custody of the body or part
  8    passes to the person under obligation to dispose of the body or part.
  9        (10) A person may not accept an anatomical gift if the person  knows  that
 10    the  gift  was  not  effectively  made under section 39-3405 or 39-3410, Idaho
 11    Code, or if the person knows that the decedent made a  refusal  under  section
 12    39-3407, Idaho Code, that was not revoked. For purposes of this subsection, if
 13    a  person  knows  that  an anatomical gift was made on a document of gift, the
 14    person is deemed to know of any amendment or revocation of  the  gift  or  any
 15    refusal to make an anatomical gift on the same document of gift.
 16        (11) Except  as  otherwise  provided in subsection (1)(b) of this section,
 17    nothing in this chapter affects the allocation of organs  for  transplantation
 18    or therapy.
                                                                        
 19        39-3413.  SEARCH  AND NOTIFICATION. (1) The following persons shall make a
 20    reasonable search of an individual who the person reasonably believes is  dead
 21    or  near  death  for  a  document of gift or other information identifying the
 22    individual as a donor or as an individual who made a refusal:
 23        (a)  A law enforcement officer, firefighter, paramedic or other  emergency
 24        rescuer finding the individual; and
 25        (b)  If  no  other  source  of the information is immediately available, a
 26        hospital, as soon as practical after the individual's arrival at the  hos-
 27        pital.
 28        (2)  If  a  document  of  gift  or a refusal to make an anatomical gift is
 29    located by the search required by subsection (1)(a) of this  section  and  the
 30    individual  or  deceased individual to whom it relates is taken to a hospital,
 31    the person responsible for conducting the search shall send  the  document  of
 32    gift or refusal to the hospital.
 33        (3)  A person is not subject to criminal or civil liability for failing to
 34    discharge the duties imposed by this section but may be subject to administra-
 35    tive sanctions.
                                                                        
 36        39-3414.  DELIVERY  OF  DOCUMENT OF GIFT NOT REQUIRED -- RIGHT TO EXAMINE.
 37    (1) A document of gift need not be delivered during the donor's lifetime to be
 38    effective.
 39        (2)  Upon or after an individual's death, a person in possession of a doc-
 40    ument of gift or a refusal to make an anatomical  gift  with  respect  to  the
 41    individual  shall  allow  examination  and  copying of the document of gift or
 42    refusal by a person authorized to make or object to the making of an  anatomi-
 43    cal gift with respect to the individual or by a person to which the gift could
 44    pass under section 39-3412, Idaho Code.
                                                                        
 45        39-3415.  RIGHTS  AND  DUTIES  OF PROCUREMENT ORGANIZATION AND OTHERS. (1)
 46    When a hospital refers an individual at or near death to a procurement organi-
 47    zation, the organization shall make a reasonable search of the records of  the
 48    Idaho transportation department and any donor registry that it knows exist for
 49    the geographical area in which the individual resides to ascertain whether the
 50    individual has made an anatomical gift.
 51        (2)  A  procurement  organization  must  be  allowed  reasonable access to
 52    information in the records of the Idaho transportation department to ascertain
                                                                        
                                       10
                                                                        
  1    whether an individual at or near death is a donor.
  2        (3)  When a hospital refers an individual at or near death to  a  procure-
  3    ment  organization,  the  organization  may conduct any reasonable examination
  4    necessary to ensure the medical suitability of a part that is or could be  the
  5    subject of an anatomical gift for transplantation, therapy, research or educa-
  6    tion from a donor or a prospective donor. During  the examination period, mea-
  7    sures necessary to ensure the medical suitability of the part may not be with-
  8    drawn  unless the hospital or procurement organization knows that the individ-
  9    ual expressed a contrary intent.
 10        (4)  Unless prohibited by law other than this chapter, at any time after a
 11    donor's death, the person to which a part passes under section 39-3412,  Idaho
 12    Code,  may  conduct any reasonable examination necessary to ensure the medical
 13    suitability of the body or part for its intended purpose.
 14        (5)  Unless prohibited by law other  than  this  chapter,  an  examination
 15    under  subsection (3) or (4) of this section may include an examination of all
 16    medical and dental records of the donor or prospective donor.
 17        (6)  Upon the death of a minor who  was  a  donor  or  who  had  signed  a
 18    refusal, unless a procurement organization knows the minor is emancipated, the
 19    procurement  organization shall conduct a reasonable search for the parents of
 20    the minor and provide the parents with an opportunity to revoke or  amend  the
 21    anatomical gift or revoke the refusal.
 22        (7)  Upon  referral  by a hospital under subsection (1) of this section, a
 23    procurement organization shall make a reasonable search for any person  listed
 24    in  section 39-3409, Idaho Code, having priority to make an anatomical gift on
 25    behalf of a prospective donor. If a procurement organization receives informa-
 26    tion that an anatomical gift to any other person was made, amended or revoked,
 27    it shall promptly advise the other person of all relevant information.
 28        (8)  Subject to section 39-3412(9), Idaho Code, the rights of  the  person
 29    to  which a part passes under section 39-3412, Idaho Code, are superior to the
 30    rights of all others with respect to the part. The person may accept or reject
 31    an anatomical gift in whole or in part. Subject to the terms of  the  document
 32    of  gift  and  this  chapter,  a  person that accepts an anatomical gift of an
 33    entire body may allow embalming, burial or cremation, and use of remains in  a
 34    funeral service. If the gift is of a part, the person to which the part passes
 35    under  section  39-3412,  Idaho  Code,  upon the death of the donor and before
 36    embalming, burial or cremation, shall cause the part  to  be  removed  without
 37    unnecessary mutilation.
 38        (9)  Neither  the physician who attends the decedent at death nor the phy-
 39    sician who determines the time of the decedent's death may participate in  the
 40    procedures for removing or transplanting a part from the decedent.
 41        (10) A  physician or technician may remove a donated part from the body of
 42    a donor that the physician or technician is qualified to remove.
                                                                        
 43        39-3416.  COORDINATION OF PROCUREMENT AND USE. Each hospital in this state
 44    shall enter into agreements or affiliations with procurement organizations for
 45    coordination of procurement and use of anatomical gifts.
                                                                        
 46        39-3417.  SALE OR PURCHASE OF PARTS PROHIBITED. (1)  Except  as  otherwise
 47    provided in subsection (2) of this section, a person that for valuable consid-
 48    eration, knowingly purchases or sells a part for transplantation or therapy if
 49    removal  of  a  part  from  an  individual  is  intended  to  occur  after the
 50    individual's death commits a felony and upon conviction is subject to  a  fine
 51    not  exceeding  fifty thousand dollars ($50,000) or imprisonment not exceeding
 52    five (5) years, or both such fine and imprisonment.
 53        (2)  A person may charge a reasonable amount for the removal,  processing,
                                                                        
                                       11
                                                                        
  1    preservation,  quality  control, storage, transportation, implantation or dis-
  2    posal of a part.
  3        (3)  A coroner acting pursuant to this section  shall  not  authorize  the
  4    removal  of a part from a body within the coroner's custody if the coroner, or
  5    any deputy or agent of the coroner, derives or may derive any direct or  indi-
  6    rect financial benefit relative to the removal, donation or use of the part.
                                                                        
  7        39-3418.  OTHER  PROHIBITED  ACTS.  A  person  that,  in order to obtain a
  8    financial gain, intentionally falsifies, forges, conceals, defaces or obliter-
  9    ates a document of gift, an amendment or revocation of a document of gift,  or
 10    a  refusal  commits  a  felony  and  upon  conviction is subject to a fine not
 11    exceeding fifty thousand dollars ($50,000) or imprisonment not exceeding  five
 12    (5) years, or both such fine and imprisonment.
                                                                        
 13        39-3419.  IMMUNITY. (1) A person that acts in accordance with this chapter
 14    or  with  the  applicable anatomical gift law of another state, or attempts in
 15    good faith to do so, is not liable for the act in  a  civil  action,  criminal
 16    prosecution or administrative proceeding.
 17        (2)  Neither  the  person making an anatomical gift nor the donor's estate
 18    is liable for any injury or damage that results from the making or use of  the
 19    gift.
 20        (3)  In  determining  whether an anatomical gift has been made, amended or
 21    revoked under this chapter, a person may rely upon representations of an indi-
 22    vidual listed in section 39-3409(1)(b), (c), (d), (e), (f), (g) or (h),  Idaho
 23    Code,  relating  to  the individual's relationship to the donor or prospective
 24    donor unless the person knows that the representation is untrue.
                                                                        
 25        39-3420.  LAW GOVERNING VALIDITY -- CHOICE OF LAW AS TO EXECUTION OF DOCU-
 26    MENT OF GIFT -- PRESUMPTION OF VALIDITY. (1) A document of gift  is  valid  if
 27    executed in accordance with:
 28        (a)  This chapter;
 29        (b)  The laws of the state or country where it was executed; or
 30        (c)  The laws of the state or country where the person making the anatomi-
 31        cal  gift was domiciled, has a place of residence or was a national at the
 32        time the document of gift was executed.
 33        (2)  If a document of gift is valid under this section, the  law  of  this
 34    state governs the interpretation of the document of gift.
 35        (3)  A  person may presume that a document of gift or amendment of an ana-
 36    tomical gift is valid unless that person knows that it was  not  validly  exe-
 37    cuted or was revoked.
                                                                        
 38        39-3421.  DONOR  REGISTRY.  (1)  The Idaho transportation department shall
 39    cooperate with a person that administers any donor registry  that  this  state
 40    establishes,  contracts  for, or recognizes for the purpose of transferring to
 41    the donor registry all relevant information regarding a donor's making, amend-
 42    ment to, or revocation of an anatomical gift.
 43        (2)  A donor registry must:
 44        (a)  Allow a donor or other person authorized under section 39-3404, Idaho
 45        Code, to include on the donor registry a  statement  or  symbol  that  the
 46        donor has made, amended or revoked an anatomical gift;
 47        (b)  Be  accessible  to  a  procurement organization to allow it to obtain
 48        relevant information on the donor registry to determine, at or near  death
 49        of  the  donor  or  a  prospective donor, whether the donor or prospective
 50        donor has made, amended or revoked an anatomical gift; and
 51        (c)  Be accessible for purposes of paragraphs (a) and (b) of this  subsec-
                                                                        
                                       12
                                                                        
  1        tion seven (7) days a week on a twenty-four (24) hour basis.
  2        (3)  Personally identifiable information on a donor registry about a donor
  3    or  prospective  donor shall not be used or disclosed without the express con-
  4    sent of the donor, prospective donor, or person that made the anatomical  gift
  5    for any purpose other than to determine, at or near death of the donor or pro-
  6    spective  donor,  whether  the donor or prospective donor has made, amended or
  7    revoked an anatomical gift.
  8        (4)  This section does not prohibit any person from creating or  maintain-
  9    ing  a  donor  registry  that is not established by or under contract with the
 10    state. Any such registry must comply with subsections (2) and (3) of this sec-
 11    tion.
                                                                        
 12        39-3422.  EFFECT OF ANATOMICAL GIFT ON ADVANCE HEALTH CARE DIRECTIVE.  (1)
 13    In this section:
 14        (a)  "Advance  health care directive" means a power of attorney for health
 15        care or a record signed by a prospective donor containing the  prospective
 16        donor's  direction  concerning  a health care decision for the prospective
 17        donor.
 18        (b)  "Declaration" means a record signed by a prospective donor specifying
 19        the circumstances under which a life support system  may  be  withheld  or
 20        withdrawn from the prospective donor.
 21        (c)  "Health  care  decision" means any decision made regarding the health
 22        care of the prospective donor.
 23        (2)  If a prospective donor has  a  declaration  or  advance  health  care
 24    directive,  measures  necessary  to ensure the medical suitability of an organ
 25    for transplantation or therapy may not be withheld or withdrawn from the  pro-
 26    spective donor, unless the declaration expressly provides to the contrary.
                                                                        
 27        39-3423.  COOPERATION  BETWEEN CORONER AND PROCUREMENT ORGANIZATION. (1) A
 28    coroner shall cooperate with procurement organizations to maximize the  oppor-
 29    tunity  to  recover anatomical gifts for the purpose of transplantation, ther-
 30    apy, research or education.
 31        (2)  A part may not be removed from the  body  of  a  decedent  under  the
 32    jurisdiction  of a coroner for transplantation, therapy, research or education
 33    unless the part is the subject of an anatomical gift and the removal will  not
 34    interfere  with any autopsy or investigation. The body of a decedent under the
 35    jurisdiction of the coroner may not be delivered to a person for  research  or
 36    education  unless  the body is the subject of an anatomical gift. This subsec-
 37    tion does not preclude a coroner from performing the medicolegal investigation
 38    upon the body or parts of a decedent under the jurisdiction of the coroner.
                                                                        
 39        39-3424.  UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and con-
 40    struing this uniform act, consideration must be given to the need  to  promote
 41    uniformity  of  the  law  with respect to its subject matter among states that
 42    enact it.
                                                                        
 43        39-3425.  RELATION TO ELECTRONIC SIGNATURES IN GLOBAL  AND  NATIONAL  COM-
 44    MERCE  ACT. This chapter modifies, limits and supersedes the electronic signa-
 45    tures in global and national commerce act, 15 U.S.C. section 7001 et seq., but
 46    does not modify, limit or supersede section 101(a) of that  act  or  authorize
 47    electronic  delivery of any of the notices described in section 103(b) of that
 48    act.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16594

The Revised Uniform Anatomical Gift Act revises the Uniform
Anatomical Gift Acts of 1968 and 1987 in light of changes in
federal law and regulation and related developments in the field
of organ donation, thereby facilitating the availability of
organs for transplantation.


                           FISCAL NOTE

     There will be no impact on the state's general fund.




Contact
Name:  Senator Bart Davis 
Phone: 332-1305
Dale G. Higer


STATEMENT OF PURPOSE/FISCAL NOTE                         S 1017