United States: New Organ Donation Law

On October 4, 2000, Governor Pataki signed into law a bill (A11207) permitting a health care proxy to include the principal’s wishes regarding organ and tissue donation.

As we know, the Health Care Proxy Law found in New York Public Health Law § 2981 allows an individual to appoint a health care agent to make any and all health care decisions, including those regarding life sustaining treatment, in the event that the individual can no longer make such decisions for him or herself. However, prior to the recent change in the law, an individual could only indicate his or her desire to make a gift of all or part of the body in one of the following ways:

1. By will, in which case the gift became effective upon the death of the testator without waiting for probate. If the will is not probated, or if it is declared invalid for testamentary purposes, the gift, to the extent that it has been acted upon in good faith, is nevertheless valid and effective.
2. By document other than a will. The document, which may be a card designed to be carried on the person, must be signed by the donor in the presence of two witnesses who must sign the document in the donor’s presence. Delivery of the document of gift during the donor’s lifetime is not necessary to make the gift valid. The gift becomes effective upon the death of the donor.
3. By completing the form on the reverse side of one’s driver’s license and having two witnesses sign.

The new provision amends § 2981 of the Public Health Law by adding a new paragraph (f) to subdivision 5 as follows:

Thus, practitioners who draft health care proxy forms for clients should indicate on the form whether the donor wishes to make a gift to a specific donee and what should happen in the event that the donee is unable to receive the gift, for whatever reason. In addition, the donor should indicate whether he or she wishes to make a gift of a particular organ.

Fortunately, the new legislation makes it clear that the failure to document one’s wishes on a health care proxy does not mean the person does not wish to donate organs. Health care providers may still rely on the traditional means of indicating an [individual’s] intentions in this regard.

It was noted in the sponsor’s memorandum in support of the legislation that over 5,000 people are currently on organ transplant lists throughout New York State. Providing a space on the health care proxy from will afford people a greater opportunity to donate their organs. In addition, it is hoped that this will open up the dialogue between family members regarding this very important issue. The new law is effective October 4, 2000.