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Willed Body Program

Revised Uniform Anatomical Gift Act

Part 3A. Revised Uniform Anatomical Gift Act.

§ 130A-412.3.  Short title.

This Part may be cited as the Revised Uniform Anatomical Gift Act. (2007-538, s. 1.)

 

§ 130A-412.4.  Definitions.

The following definitions apply in this Part:

(1)        “Adult” means an individual who is at least 18 years of age.

(2)        “Agent” means an individual:

a.         Authorized to make an anatomical gift on the principal’s behalf under a power of attorney for health care; or

b.         Expressly authorized to make an anatomical gift on the principal’s behalf by any other record signed by the principal.

(3)        “Anatomical gift” means a donation of all or part of a human body to take effect after the donor’s death for the purpose of transplantation, therapy, research, or education.

(4)        “Body part” means an organ, an eye, or tissue of a human being. The term does not include the whole body.

(5)        “Decedent” means a deceased individual whose body or body part is or may be the source of an anatomical gift. The term includes a stillborn infant and, subject to restrictions imposed by law other than this Article, a fetus.

(6)        “Disinterested witness” means any individual except for the following:

a.         The donor’s: spouse, child, parent, sibling, grandchild, grandparent, or guardian.

b.         An adult who exhibited special care and concern for the donor.

c.         A person to whom an anatomical gift could pass under G.S. 130A-412.13.

(7)        “Document of gift” means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a drivers license, identification card, or donor registry.

(8)        “Donor” means an individual whose body or body part is the subject of an anatomical gift.

(9)        “Donor registry” means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.

(10)      “Drivers license” means a license or permit issued by the North Carolina Department of Transportation, Division of Motor Vehicles, to operate a vehicle, whether or not conditions are attached to the license or permit.

(11)      “Eye bank” means an entity that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.

(12)      “Guardian” means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.

(12a)    “Health care decision” means any decision made regarding the health care of the prospective donor.

(13)      “Hospital” means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.

(14)      “Identification card” means an identification card issued by the North Carolina Department of Transportation, Division of Motor Vehicles.

(15)      “Know” means to have actual knowledge.

(16)      “Minor” means an individual who is under 18 years of age.

(17)      “Organ procurement organization” means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.

(18)      “Parent” means a parent whose parental rights have not been terminated.

(19)      “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(20)      “Physician” means an individual authorized to practice medicine or osteopathy under the law of any state.

(21)      “Procurement organization” means an eye bank, organ procurement organization, or tissue bank.

(22)      “Prospective donor” means an individual who is dead or near death and has been determined by a procurement organization to have a body part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.

(23)      “Reasonably available” means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

(24)      “Recipient” means an individual into whose body a decedent’s body part has been or is intended to be transplanted.

(25)      “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(26)      “Refusal” means a record created under G.S. 130A-412.9 that expressly states an intent to bar other persons from making an anatomical gift of an individual’s body or body part.

(27)      “Sign” means, with the present intent to authenticate or adopt a record:

a.         To execute or adopt a tangible symbol; or

b.         To attach to or logically associate with the record an electronic symbol, sound, or process.

(28)      “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(29)      “Technician” means an individual determined to be qualified to remove or process body parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an enucleator.

(30)      “Tissue” means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.

(31)      “Tissue bank” means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.

(32)      “Transplant hospital” means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients. (2007-538, s. 1.)

 

§ 130A-412.5.  Applicability.

This act applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made. (2007-538, s. 1.)

 

§ 130A-412.6.  Who may make an anatomical gift before donor’s death.

Subject to G.S. 130A-412.10, an anatomical gift of a donor’s body or body part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in G.S. 130A-412.7 by:

(1)        The donor, if the donor is an adult or if the donor is a minor and is:

a.         Emancipated; or

b.         Authorized under State law to apply for a drivers license because the donor is at least 16 years of age;

(2)        An agent of the donor to the extent authorized under a power of attorney for health care or other record;

(3)        A parent of the donor, if the donor is an unemancipated minor; or

(4)        The donor’s guardian. (2007-538, s. 1.)

 

§ 130A-412.7.  Manner of making anatomical gift before donor’s death.

(a)        A donor may make an anatomical gift by any of the following methods:

(1)        By authorizing that a statement or symbol be imprinted on the donor’s drivers license or identification card indicating that the donor has made an anatomical gift. Anatomical gifts made by this method shall not include a donation of tissue or the donor’s body.

(2)        In a will.

(3)        During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness.

(4)        As provided in subsection (b) of this section.

(b)        A donor or other person authorized to make an anatomical gift under G.S. 130A-412.6 may make a gift by a signed donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must:

(1)        Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and

(2)        State that it has been signed and witnessed as provided in subdivision (1) of this subsection.

(c)        Revocation, suspension, expiration, or cancellation of a drivers license or identification card upon which an anatomical gift is indicated does not invalidate the gift.

(d)       An anatomical gift made by will takes effect upon the donor’s death whether or not the will is probated. Invalidation of the will after the donor’s death does not invalidate the gift. (2007-538, s. 1.)

 

§ 130A-412.8.  Amending or revoking anatomical gift before donor’s death.

(a)        Subject to G.S. 130A-412.10, a donor or other person authorized to make an anatomical gift under G.S. 130A-412.6 may amend or revoke an anatomical gift by:

(1)        A record signed by:

a.         The donor;

b.         The other person; or

c.         Subject to subsection (b) of this section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or

(2)        A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.

(b)        A record signed pursuant to sub-subdivision c. of subdivision (1) of subsection (a) of this section must:

(1)        Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and

(2)        State that it has been signed and witnessed as provided in subdivision (1) of this subsection.

(c)        Subject to G.S. 130A-412.10, a donor or other person authorized to make an anatomical gift under G.S. 130A-412.6 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.

(d)       A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

(e)        A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section. (2007-538, s. 1.)

 

§ 130A-412.9.  Refusal to make anatomical gift; effect of refusal.

(a)        An individual may refuse to make an anatomical gift of the individual’s body or body part by:

(1)        A record signed by:

a.         The individual; or

b.         Subject to subsection (b) of this section, another individual acting at the direction of the individual if the individual is physically unable to sign;

(2)        The individual’s will, whether or not the will is admitted to probate or invalidated after the individual’s death; or

(3)        Any form of communication made by the individual during the individual’s terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.

(b)        A record signed pursuant to sub-subdivision b. of subdivision (1) of subsection (a) of this section must:

(1)        Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and

(2)        State that it has been signed and witnessed as provided in subdivision (1) of this subsection.

(c)        An individual who has made a refusal may amend or revoke the refusal:

(1)        In the manner provided in subsection (a) of this section for making a refusal;

(2)        By subsequently making an anatomical gift pursuant to G.S. 130A-412.7 that is inconsistent with the refusal; or

(3)        By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.

(d)       Except as otherwise provided in G.S. 130A-412.10(h), in the absence of an express, contrary indication by the individual set forth in the refusal, an individual’s unrevoked refusal to make an anatomical gift of the individual’s body or body part bars all other persons from making an anatomical gift of the individual’s body or body part. (2007-538, s. 1.)

 

§ 130A-412.10.  Preclusive effect of an anatomical gift, amendment, or revocation.

(a)        Except as otherwise provided in subsection (g) of this section and subject to subsection (f) of this section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor’s body or body part if either of the following apply:

(1)        The donor made an anatomical gift of the donor’s body or body part under G.S. 130A-412.7.

(2)        The donor made an amendment to an anatomical gift of the donor’s body or body part under G.S. 130A-412.8.

(b)        A donor’s revocation of an anatomical gift of the donor’s body or body part under G.S. 130A-412.8 is not a refusal and does not bar another person specified in G.S. 130A-412.6 or G.S. 130A-412.11 from making an anatomical gift of the donor’s body or body part under G.S. 130A-412.7 or G.S. 130A-412.12.

(c)        If a person other than the donor makes an unrevoked anatomical gift of the donor’s body or body part under G.S. 130A-412.7 or an amendment to an anatomical gift of the donor’s body or body part under G.S. 130A-412.8, another person may not make, amend, or revoke the gift of the donor’s body or body part under G.S. 130A-412.12.

(d)       A revocation of an anatomical gift of a donor’s body or body part under G.S. 130A-412.8 by a person other than the donor does not bar another person from making an anatomical gift of the body or body part under G.S. 130A-412.7 or G.S. 130A-412.12.

(e)        In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under G.S. 130A-412.6, an anatomical gift of a body part is neither a refusal to give another body part nor a limitation on the making of an anatomical gift of another body part at a later time by the donor or another person.

(f)        In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under G.S. 130A-412.6, an anatomical gift of a body part for one or more of the purposes set forth in G.S. 130A-412.6 is not a limitation on the making of an anatomical gift of the body part for any of the other purposes by the donor or any other person under G.S. 130A-412.7 or G.S. 130A-412.12.

(g)        If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor’s body or body part.

(h)        If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor’s refusal. (2007-538, s. 1.)

 

§ 130A-412.11.  Who may make an anatomical gift of decedent’s body or body part.

(a)        Subject to subsections (b) and (c) of this section, and unless barred by G.S. 130A-412.9 or G.S. 130A-412.10, an anatomical gift of a decedent’s body or body part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:

(1)        An agent of the decedent at the time of death who could have made an anatomical gift under G.S. 130A-412.6(2) immediately before the decedent’s death;

(2)        The spouse of the decedent;

(3)        Adult children of the decedent;

(4)        Parents of the decedent;

(5)        Adult siblings of the decedent;

(6)        Adult grandchildren of the decedent;

(7)        Grandparents of the decedent;

(8)        An adult who exhibited special care and concern for the decedent;

(9)        The persons who were acting as the guardians of the person of the decedent at the time of death; and

(10)      Any other person having the authority to dispose of the decedent’s body.

(b)        If there is more than one member of a class listed in subdivision (a)(1), (3), (4), (5), (6), (7), or (9) of this section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under G.S. 130A-412.13 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.

(c)        A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class under subsection (a) of this section is reasonably available to make or to object to the making of an anatomical gift. (2007-538, s. 1.)

 

§ 130A-412.12.  Manner of making, amending, or revoking anatomical gift of decedent’s body or body part.

(a)        A person authorized to make an anatomical gift under G.S. 130A-412.11 may make an anatomical gift by a document of gift signed by the person making the gift or by that person’s oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.

(b)        Subject to subsection (c) of this section, an anatomical gift by a person authorized under G.S. 130A-412.11 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under G.S. 130A-412.11 may be:

(1)        Amended only if a majority of the reasonably available members agrees to the amending of the gift; or

(2)        Revoked only if a majority of the reasonably available members agrees to the revoking of the gift or if they are equally divided as to whether to revoke the gift.

(c)        A revocation under subsection (b) of this section is effective only if, before an incision has been made to remove a body part from the donor’s body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation. (2007-538, s. 1.)

 

§ 130A-412.13.  Persons that may receive anatomical gift; purpose of anatomical gift.

(a)        An anatomical gift may be made to the following persons named in the document of gift:

(1)        A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, including the Commission on Anatomy, for research or education;

(2)        Subject to subsection (b) of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the body part;

(3)        An eye bank or tissue bank.

(b)        If an anatomical gift to an individual under subdivision (a)(2) of this section cannot be transplanted into the individual, the body part passes in accordance with subsection (g) of this section in the absence of an express, contrary indication by the person making the anatomical gift.

(c)        If an anatomical gift of one or more specific body parts or of all body parts is made in a document of gift that does not name a person described in subsection (a) of this section but identifies the purpose for which an anatomical gift may be used, the following rules apply:

(1)        If the body part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.

(2)        If the body part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.

(3)        If the body part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(4)        If the body part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.

(d)       For the purpose of subsection (c) of this section, if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

(e)        If an anatomical gift of one or more specific body parts is made in a document of gift that does not name a person described in subsection (a) of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this section.

(f)        If a document of gift specifies only a general intent to make an anatomical gift by words such as “donor,” “organ donor,” or “body donor,” or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this section.

(g)        For purposes of subsections (b), (e), and (f) of this section, the following rules apply:

(1)        If the body part is an eye, the gift passes to the appropriate eye bank.

(2)        If the body part is tissue, the gift passes to the appropriate tissue bank.

(3)        If the body part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(h)        An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subdivision (a)(2) of this section, passes to the organ procurement organization as custodian of the organ.

(i)         If an anatomical gift does not pass pursuant to subsections (a) through (h) of this section or the decedent’s body or body part is not used for transplantation, therapy, research, or education, then custody of the body or body part passes to the person under obligation to dispose of the body or body part.

(j)         A person may not accept an anatomical gift if the person knows that the gift was not effectively made under G.S. 130A-412.7 or G.S. 130A-412.12 or if the person knows that the decedent made a refusal under G.S. 130A-412.9 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.

(k)        Except as otherwise provided in subdivision (a)(2) of this section, nothing in this act affects the allocation of organs for transplantation or therapy. (2007-538, s. 1.)

 

§ 130A-412.14.  Search and notification.

A search of an individual who is reasonably believed to be dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal, and, if applicable, notification of the hospital to which the individual is taken, shall be governed by G.S. 90-602.  (2007-538, s. 1; 2008-153, s. 2.)

 

§ 130A-412.15.  Delivery of document of gift not required; right to examine.

(a)        A document of gift need not be delivered during the donor’s lifetime to be effective.

(b)        Upon or after an individual’s death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under G.S. 130A-412.13. (2007-538, s. 1.)

 

§ 130A-412.16.  Rights and duties of procurement organization and others.

(a)        When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the North Carolina Department of Transportation, Division of Motor Vehicles, and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.

(b)        A procurement organization must be allowed reasonable access to information in the records of the North Carolina Department of Transportation, Division of Motor Vehicles, to ascertain whether an individual at or near death is a donor.

(c)        When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a body part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the body part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.

(d)       Unless prohibited by law other than this Part, at any time after a donor’s death, the person to which a body part passes under G.S. 130A-412.13 may conduct any reasonable examination necessary to ensure the medical suitability of the body or body part for its intended purpose.

(e)        Unless otherwise prohibited by law, an examination under subsection (c) or (d) of this section may include an examination of all medical and dental records of the donor or prospective donor.

(f)        Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

(g)        Upon referral by a hospital under subsection (a) of this section, a procurement organization shall make a reasonable search for any person listed in G.S. 130A-412.11 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.

(h)        Subject to G.S. 130A-412.13(i) and G.S. 130A-412.25, the rights of the person to which a body part passes under G.S. 130A-412.13 are superior to the rights of all others with respect to the body part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this Part, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation, and use of remains in a funeral service. If the gift is of a body part, the person to which the body part passes under G.S. 130A-412.13, upon the death of the donor and before embalming, burial, or cremation, shall cause the body part to be removed without unnecessary mutilation.

(i)         Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent’s death may participate in the procedures for removing or transplanting a part from the decedent.

(j)         A physician or technician may remove a donated body part from the body of a donor that the physician or technician is qualified to remove. (2007-538, s. 1.)

 

§ 130A-412.17.  Coordination of procurement and use.

Each hospital in this State shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts. (2007-538, s. 1.)

 

§ 130A-412.18.  Sale or purchase of body parts prohibited.

(a)        Except as otherwise provided in subsection (b) of this section, a person, that for valuable consideration, knowingly purchases or sells a body part for transplantation or therapy if removal of a body part from an individual is intended to occur after the individual’s death commits a Class H felony and upon conviction may be fined up to fifty thousand dollars ($50,000) for each offense.

(b)        A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a body part. (2007-538, s. 1.)

 

§ 130A-412.19.  Other prohibited acts.

A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a Class H felony and upon conviction may be fined up to fifty thousand dollars ($50,000) for each offense. (2007-538, s. 1.)

 

§ 130A-412.20.  Immunity.

(a)        A person that acts with due care in accordance with this Part or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.

(b)        Neither the person making an anatomical gift nor the donor’s estate is liable for any injury or damage that results from the making or use of the gift.

(c)        In determining whether an anatomical gift has been made, amended, or revoked under this Part, a person may rely upon representations of an individual listed in subdivisions (2) through (8) of G.S. 130A-412.11(a) relating to the individual’s relationship to the donor or prospective donor unless the person knows that the representation is untrue. (2007-538, s. 1.)

 

§ 130A-412.21.  Law governing validity; choice of law as to execution of document of gift; presumption of validity.

(a)        A document of gift is valid if executed in accordance with:

(1)        This Part;

(2)        The laws of the state or country where it was executed; or

(3)        The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.

(b)        If a document of gift is valid under this section, the law of this State governs the interpretation of the document of gift.

(c)        A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked. (2007-538, s. 1.)

 

§ 130A-412.22.  Donor registry.

The online Organ Donor Registry Internet site established pursuant to G.S. 20-43.2 shall be the State donor registry for anatomical gifts made pursuant to this Part. Requirements for maintenance and use of the State donor registry shall be as provided under G.S. 20-43.2. (2007-538, s. 1.)

 

§ 130A-412.23.  Cooperation between a medical examiner and the procurement organization.

(a)        The medical examiner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.

(b)        If a medical examiner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is going to be performed, unless the medical examiner denies recovery in accordance with G.S. 130A-412.24, the medical examiner or designee shall conduct a postmortem examination of the body or the body part in a manner and within a period compatible with its preservation for the purposes of the gift.

(c)        A body part may not be removed from the body of a decedent under the jurisdiction of a medical examiner for transplantation, therapy, research, or education unless the body part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical examiner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a medical examiner from performing the medicolegal investigation upon the body or body parts of a decedent under the jurisdiction of the medical examiner.

(d)       As used in this section and G.S. 130A-412.24, “medical examiner” includes the Chief Medical Examiner, a county medical examiner, or a designee of either. (2007-538, s. 1.)

 

§ 130A-412.24.  Facilitation of anatomical gift from decedent whose body is under the jurisdiction of a medical examiner.

(a)        Upon request of a procurement organization, a medical examiner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is or will come under the jurisdiction of the medical examiner. If the decedent’s body or body part is medically suitable for transplantation, therapy, research, or education, the medical examiner shall release postmortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the postmortem examination results or other information received from the medical examiner only if relevant to transplantation or therapy.

(b)        The medical examiner may conduct a medicolegal examination, including physical examination of a donor or prospective donor and review of all medical records, laboratory test results, X-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner or whose body would be under the medical examiner’s jurisdiction upon death and that the medical examiner determines may be relevant to the investigation.

(c)        A person that has any information requested by a medical examiner pursuant to subsection (b) of this section shall provide that information as expeditiously as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of body parts for the purpose of transplantation, therapy, research, or education.

(d)       If an anatomical gift has been or might be made of a body part of a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is not required, or the medical examiner determines that a postmortem examination is required but that the recovery of the body part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the body part from the decedent for the purpose of transplantation, therapy, research, or education.

(e)        If an anatomical gift of a body part from the decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner initially believes that the recovery of the body part could interfere with the postmortem investigation into the decedent’s cause or manner of death, the collection of evidence, or the description, documentation, or interpretation of injuries on the body, the medical examiner shall consult with the procurement organization or physician or technician designated by the procurement organization about the proposed recovery. After consultation, the medical examiner may deny or allow the recovery.

(f)        If the medical examiner or designee allows recovery of a body part under subsection (d) or (e) of this section, the procurement organization shall provide the medical examiner or designee with a record describing the condition of the body part signed by the physician or technician who removes the body part and any other information and observations that would assist in the postmortem examination. (2007-538, s. 1.)

 

§ 130A-412.25: Reserved for future codification purposes.

 

§ 130A-412.26: Reserved for future codification purposes.

 

§ 130A-412.27: Reserved for future codification purposes.

 

§ 130A-412.28: Reserved for future codification purposes.

 

§ 130A-412.29: Reserved for future codification purposes.

 

§ 130A-412.30.  Use of tissue declared a service; standard of care; burden of proof.

The procurement, processing, distribution or use of whole blood, plasma, blood products, blood derivatives and other human tissues such as corneas, bones or organs for the purpose of injecting, transfusing or transplanting any of them into the human body is declared to be, for all purposes, the rendition of a service by every participating person or institution. Whether or not any remuneration is paid, the service is declared not to be a sale of whole blood, plasma, blood products, blood derivatives or other human tissues, for any purpose. No person or institution shall be liable in warranty, express or implied, for the procurement, processing, distribution or use of these items but nothing in this section shall alter or restrict the liability of a person or institution in negligence or tort in consequence of these services. (1971, c. 836; 1983, c. 891, s. 2; 2007-538, s. 3(a).)

 

§ 130A-412.31.  Giving of blood by persons 16 years of age or more.

A person who is 16 years of age or more may give or donate blood to an individual, hospital, blood bank or blood collection center without the consent of the parent or parents or guardian of the donor. It shall be unlawful for a person under the age of 18 years to sell blood.  (1971, c. 10; c. 1093, s. 16; 1977, c. 373; 1983, c. 891, s. 2; 2007-538, s. 3(a); 2008-153, s. 9.)

 

§ 130A-412.32.  Duty of hospitals to establish organ procurement protocols.

(a)        In order to facilitate the goals of this Part, each hospital shall establish written protocols that:

(1)        Require that only the organ procurement organization designated by the Secretary of Health and Human Services be notified of all deaths or impending brain deaths meeting criteria for notification as established by the designated organ procurement organization; and

(2)        Ensure that notification required under subdivision (1) of this subsection be made as soon as it is determined that brain death is imminent or cardiac death has occurred.

(b)        Hospitals shall provide their federally designated organ procurement organizations and tissue banks reasonable access to patients’ medical records for the purpose of determining organ or tissue donation potential.

(c)        The family of any person whose organ or tissue is donated for transplantation shall not be financially liable for any costs related to the evaluation of the suitability of the donor’s organ or tissue for transplantation, or for any costs of retrieval of the organ or tissue.

(d)       Each hospital shall provide its federally designated organ procurement organization with reasonable access during regular business hours to the medical records of deceased patients for the following purposes:

(1)        Determining the hospital’s organ and tissue donation potential;

(2)        Assessing the educational needs of the hospital in regard to the organ and tissue donation process; and

(3)        Providing documentation to the hospital to evaluate the effectiveness of the hospital’s efforts.

(e)        Each hospital shall have a signed agreement with its federally designated organ procurement organization that addresses the requirements of this section and the requirements of G.S. 130A-412.33.

(f)        The requirements of this section, or of any hospital procurement protocols established pursuant to this section, shall not exceed those provided for by the hospital organ protocol provisions of Title XI of the Social Security Act, except for the purposes of this section the term “organ and tissue donors” shall include cornea and tissue donors for transplantation.

(g)        Hospitals and hospital personnel shall not be subject to civil or criminal liability nor to discipline for unprofessional conduct for actions taken in good faith to comply with this section. This subsection shall not provide immunity from civil liability arising from gross negligence. (1987, c. 719, s. 1; 1989, c. 537, s. 4; 1997-192, s. 2; 1997-456, s. 48; 2007-538, ss. 3(a), 4.)

 

§ 130A-412.33.  Duty of designated organ procurement organizations and tissue banks.

(a)        After notification regarding an impending brain death, brain death, or cardiac death has been made to the federally designated organ procurement organization, the federally designated organ procurement organization shall evaluate donation potential.

(b)        The federally designated organ procurement organization or tissue bank shall assure that families of potential organ and tissue donors are made aware of the option of organ and tissue donation and their option to decline.

(c)        The federally designated organ procurement organization or tissue bank shall, working collaboratively with the hospital, request consent for organ or tissue donation in the order of priority established under G.S. 130A-412.11 and shall have designated, trained staff available to perform the consent process 24 hours a day, 365 days a year.

(d)       The federally designated organ procurement organization or tissue bank shall encourage discretion and sensitivity with respect to the circumstances, views, and beliefs of the families of potential organ and tissue donors.

(e)        All hospital and patient information, interviews, reports, statements, memoranda, and other data obtained or created by a tissue bank or federally designated organ procurement organization from the medical records review described in G.S. 130A-412.33 shall be privileged and confidential and may be used by the tissue bank or federally designated organ procurement organization only for the purposes set forth in G.S. 130A-412.33 and shall not be subject to discovery or introduction as evidence in any civil action, suit, or proceeding. However, hospital and patient information, interviews, reports, statements, memoranda, and other data otherwise available are not immune from discovery or use in a civil action, suit, or proceeding merely because they were obtained or created by a tissue bank or federally designated organ procurement organization from the medical records review described in G.S. 130A-412.33.

(f)        If the hospital is made a party of any action, suit, or proceeding arising out of the failure of a federally designated organ procurement organization or tissue bank to comply with the requirements of this section, the hospital shall be held harmless from any and all liability and costs, including the amounts of judgments, settlements, fines, or penalties, and expenses and reasonable attorneys’ fees incurred in connection with the action, suit, or proceeding. (1997-192, s. 3; 2007-538, ss. 3(a), 5, 6.)

 

Part 4. Human Tissue Donation Program.

§ 130A-413.  Coordinated human tissue donation program; legislative findings and purpose; program established.

(a)        The General Assembly finds that there is an increasing need for human tissues for transplantation purposes; that there is a continuing need for human tissues for the purposes of medical education and research; and that these needs are not being sufficiently filled at the present because of a shortage of human tissue donors. The General Assembly establishes a coordinated human tissue donation program to facilitate the acquisition and distribution of human tissues to promote the public health. For the purposes of this Part, the term “human tissue” includes cadavers.

(b)        The Department shall establish and administer a coordinated program among departments and agencies of the State and all groups, both public and private, involved in the acquisition and distribution of human tissue to:

(1)        Increase awareness of the need for human tissue donations and of the methods by which these donations are made;

(2)        Increase awareness of the existing programs of human tissue transplantation and of medical research and education which employs human tissue and share information with the public;

(3)        Study the problems surrounding the acquisition and distribution of human tissue and make suggestions for their solution;

(4)        Disseminate information to health and other professionals concerning the techniques of human tissue retrieval and transplantation, the legalities involved in making anatomical gifts; and

(5)        Arrange for the quick and precise transportation of donated human tissue in emergency transplant situations.

(c)        All departments and agencies of the State and county and municipal law-enforcement agencies shall cooperate with the coordinated human tissue donation program instituted by the Department. (1983, c. 891, s. 2.)

 

§ 130A-414.  Repealed by Session Laws 1987, c. 719, s. 2.

 

Part 5. Disposition of Unclaimed Bodies.

§ 130A-415.  Unclaimed bodies; bodies claimed by the Lifeguardianship Council of the Association for Retarded Citizens of North Carolina; disposition.

(a)        Any person, including officers, employees and agents of the State or of any unit of local government in the State, undertakers doing business within the State, hospitals, nursing homes or other institutions, having physical possession of a dead body shall make reasonable efforts to contact relatives of the deceased or other persons who may wish to claim the body for final disposition. If the body remains unclaimed for final disposition for 10 days, the person having possession shall notify the Commission of Anatomy. Upon request of the Commission of Anatomy, the person having possession shall deliver the dead body to the Commission of Anatomy at a time and place specified by the Commission of Anatomy or shall permit the Commission of Anatomy to take and remove the body.

(b)        All dead bodies not claimed for final disposition within 10 days of the decedent’s death may be received and delivered by the Commission of Anatomy pursuant to the authority contained in G.S. 130A-33.30 and this Part and in accordance with the rules of the Commission of Anatomy. Upon receipt of a body by the Commission of Anatomy all interests in and rights to the unclaimed dead body shall vest in the Commission of Anatomy. The recipient to which the Commission of Anatomy delivers the body shall pay all expenses for the embalming and delivery of the body, and for the reasonable expenses arising from efforts to notify relatives or others.

(b1)      The 10-day period referenced in subsections (a) and (b) of this section may be shortened by the county director of social services upon determination that a dead body will not be claimed for final disposition within the 10-day period.

(c)        Should the Commission of Anatomy decline to receive a dead body, the person with possession shall inform the director of social services of the county in which the body is located. The director of social services of that county shall arrange for prompt final disposition of the body, either by cremation or burial. Reasonable costs of disposition and of efforts made to notify relatives and others shall be considered funeral expenses and shall be paid in accordance with G.S. 28A-19-6 and G.S. 28A-19-8. If those expenses cannot be satisfied from the decedent’s estate, they shall be borne by the decedent’s county of residence. If the deceased is not a resident of this State, or if the county of residence is unknown, those expenses shall be borne by the county in which the death occurred.

(d)       No autopsy shall be performed on an unclaimed body without the written consent of the Commission of Anatomy except that written consent is not required for an autopsy performed pursuant to Part 2 of this Article.

(e)        Due caution shall be taken to shield the unclaimed body from public view.

(f)        Notwithstanding anything contained in this section, an unclaimed body shall not mean a dead body for which the deceased has made a gift pursuant to Part 3A of this Article.

(g)        Nothing in this Part shall require the officers, employees or agents of a county to notify the Commission of Anatomy regarding the bodies of minors who were in the custody of the county at the time of death and whose final disposition will be arranged by the county. In the absence of notification, the expenses of the final disposition shall be a charge upon the county having custody.

(h)        The provisions of this Part shall not apply to bodies within the jurisdiction of the medical examiner under G.S. 130A-383 or 130A-384.

(i)         In addition to the other duties of the Commission of Anatomy, when the Commission of Anatomy is notified by the Lifeguardianship Council of the Association of Retarded Citizens of North Carolina, Inc., that the Council intends to claim a body, the Commission shall release the body to the Council. The Lifeguardianship Council shall notify the Commission of Anatomy within 24 hours after death of its intent to claim a body for burial or other humane and caring disposition.  (1975, c. 694, s. 3; 1977, c. 458; 1983, c. 891, s. 2; 1987, c. 470; 1989, c. 222; c. 770, s. 75; 2008-153, s. 7.)

 

§ 130A-416.  Commission of Anatomy rules.

The Commission of Anatomy is authorized to adopt rules necessary to implement the provisions of this Part. (1983, c. 891, s. 2.)

 

Part 6. Final Disposition or Transportation of Deceased Migrant Agricultural Workers and Their Dependents.

§ 130A-417.  Definitions.

The following definitions shall apply throughout this Part:

(1)        “Dependent” means child, grandchild, spouse or parent of a migrant agricultural worker who moves with the migrant agricultural worker in response to the demand for seasonal agricultural labor.

(2)        “Migrant agricultural worker” means a worker who moves in response to the demand for seasonal agricultural labor. (1983, c. 891, s. 2.)

 

§ 130A-418.  Deceased migrant agricultural workers and their dependents.

(a)        Notwithstanding any other provisions of law, a person having knowledge of the death of a migrant agricultural worker or a worker’s dependent shall without delay report the death to the department of social services in the county in which the body is located together with any information regarding the deceased including identity, place of employment, permanent residence, and the name, address and telephone number of any relative and any interested person. The county department of social services shall, within a reasonable time of receiving this report, transmit to the Department notice of the death and information received upon notification. The Department shall make reasonable effort to inform the next-of-kin and any interested person of the death.

(b)        If the identity of the person cannot be determined within a reasonable period of time, or if the body is unclaimed 10 days after death, the body shall be offered to the Commission of Anatomy and, upon its request, shall be delivered to the Commission of Anatomy. If the Commission of Anatomy does not request an unclaimed body offered it or the estate, and if the relatives or other interested persons claiming the body are unable to provide for the final disposition of the migrant agricultural worker or dependent, the Department is authorized and directed to arrange for the final disposition of the decedent.

(c)        If the estate, relatives or interested persons are able to provide for final disposition but are unable to effect the transportation of the decedent to the decedent’s legal residence or the legal residence of the relatives or interested persons, the Department is authorized and directed to allocate a sum of not more than two hundred dollars ($200.00) to defray the transportation expenses.

(d)       The Secretary is authorized to adopt rules necessary to implement this section. (1975, c. 891; 1977, c. 648; 1983, c. 891, s. 2.)

 

§ 130A-419.  Reserved for future codification purposes.

 

Part 7. Disposition of Body or Body Parts.

§ 130A-420.  Authority to dispose of body or body parts.

(a)        An individual at least 18 years of age may authorize the type, place, and method of disposition of the individual’s own dead body by methods in the following order:

(1)        Pursuant to a preneed funeral contract executed pursuant to Article 13D of Chapter 90 of the General Statutes or pursuant to a cremation authorization form executed pursuant to Article 13C of Chapter 90 of the General Statutes.

(2)        Pursuant to a health care power of attorney to the extent provided in Article 3 of Chapter 32A of the General Statutes.

(3)        Pursuant to a written will.

(4)        Pursuant to a written statement other than a will signed by the individual and witnessed by two persons who are at least 18 years old.

(a1)      An individual at least 18 years of age may delegate his or her right to dispose of his or her own dead human body to any person by one of the following methods:

(1)        Any means authorized in subsection (a) of this section.

(2)        By completing United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form. A delegation made by filling out this form shall only be effective if the individual dies under the circumstances described in 10 U.S.C. § 1481(a)(1) through (8). A delegation under this subdivision takes precedence over any of the methods set forth in this section.

(b)        If a decedent has left no written authorization for the disposal of the decedent’s body as permitted under subsection (a) of this section, the following competent persons in the order listed may authorize the type, method, place, and disposition of the decedent’s body:

(1)        The surviving spouse.

(2)        A majority of the surviving children over 18 years of age, who can be located after reasonable efforts.

(3)        The surviving parents.

(4)        A majority of the surviving siblings over 18 years of age, who can be located after reasonable efforts.

(5)        A majority of the persons in the classes of the next degrees of kinship, in descending order, who, under State law, would inherit the decedent’s estate if the decedent died intestate who are at least 18 years of age and can be located after reasonable efforts.

(6)        A person who has exhibited special care and concern for the decedent and is willing and able to make decisions about the disposition.

(7)        In the case of indigents or any other individuals whose final disposition is the responsibility of the State or any of its instrumentalities, a public administrator, medical examiner, coroner, State-appointed guardian, or any other public official charged with arranging the final disposition of the decedent.

(8)        In the case of individuals who have donated their bodies to science or whose death occurred in a nursing home or private institution and in which the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution.

(9)        In the absence of any of the persons described in subdivisions (1) through (8) of this subsection, any person willing to assume responsibility for the disposition of the body.

This subsection does not grant to any person the right to cancel a preneed funeral contract executed pursuant to Article 13D of Chapter 90 of the General Statutes, to prohibit the substitution of a preneed licensee as authorized under G.S. 90-210.63, or to permit modification of preneed contracts under G.S. 90-210.63A. If an individual is incompetent at the time of the decedent’s death, the individual shall be treated as if he or she predeceased the decedent. An attending physician may certify the incompetence of an individual and the certification shall apply to the rights under this section only. Any individual under this section may waive his or her rights under this subsection by any written statement notarized by a notary public or signed by two witnesses.

(b1)      A person who does not exercise his or her right to dispose of the decedent’s body under subsection (b) of this section within five days of notification or 10 days from the date of death, whichever is earlier, shall be deemed to have waived his or her right to authorize disposition of the decedent’s body or contest disposition in accordance with this section.

(c)        An individual at least 18 years of age may, in a writing signed by the individual, authorize the disposition of one or more of the individual’s body parts that has been or will be removed. If the individual does not authorize the disposition, a person listed in subsection (b) of this section may authorize the disposition as if the individual was deceased.

(d)       This section does not apply to the disposition of dead human bodies as anatomical gifts under Part 3A of Article 16 of Chapter 130A of the General Statutes or the right to perform autopsies under Part 2 of Article 16 of Chapter 130A of the General Statutes.  (1997-399, s. 34; 2007-531, s. 26; 2008-153, s. 8; 2010-191, s. 1.)

 

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