To repeal sections 194.210, 194.220, 194.230, 194.233, 194.250, 194.260, 194.270, 194.280, and 194.290, RSMo 1994, and section 194.240, RSMo Supp. 1995, relating to anatomical gifts, and to enact in lieu thereof fifteen new sections relating to the same subject, with penalty provisions.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

Section A. Sections 194.210, 194.220, 194.230, 194.233, 194.250, 194.260, 194.270, 194.280, and 194.290, RSMo 1994, and section 194.240, RSMo Supp. 1995, are repealed and fifteen new sections enacted in lieu thereof, to be known as sections 194.211, 194.214, 194.217, 194.219, 194.223, 194.227, 194.231, 194.235, 194.239, 194.242, 194.245, 194.249, 194.252, 194.253 and 194.255, to read as follows:

194.211. As used in sections 194.211 to 194.255:

(1) "Anatomical gift" means a donation of all or part of a human body to take effect upon or after death.

(2) "Decedent" means a deceased individual and includes a stillborn infant or fetus.

(3) "Document of gift" means a card, a statement attached to or imprinted on a motor vehicle operator's or chauffeur's license, a will, or other writing used to make an anatomical gift.

(4) "Donor" means an individual who makes an anatomical gift of all or part of the individual's body.

(5) "Enucleator" means an individual who is qualified pursuant to the provisions of section 194.295 to remove or process eyes or parts of eyes.

(6) "Hospital" means a facility licensed, accredited, or approved as a hospital under the law of any state or a facility operated as a hospital by the United States government, a state, or a subdivision of a state.

(7) "Part" means an organ, tissue, eye, bone, artery, blood, fluid, or other portion of a human body.

(8) "Person" means an individual, corporation, business trust, estate, trust, partnership, joint venture, association, government, governmental subdivision or agency, or any other legal or commercial entity.

(9) "Physician" or "surgeon" means an individual licensed or otherwise authorized to practice medicine and surgery or osteopathy and surgery under the laws of any state.

(10) "Procurement organization" means a person licensed, accredited, or approved under the laws of any state for procurement, distribution, or storage of human bodies or parts.

(11) "State" means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

(12) "Technician" means an individual who is licensed or certified to remove or process a part.

194.214. (a) An individual who is at least eighteen years of age may (i) make an anatomical gift for any of the purposes stated in section 194.227(a), (ii) limit an anatomical gift to one or more of those purposes, or (iii) refuse to make an anatomical gift.

(b) An anatomical gift may be made only by a document of gift signed by the donor. If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.

(c) If a document of gift is attached to or imprinted on a donor's motor vehicle operator's or chauffeur's license, the document of gift must comply with subsection (b). Revocation, suspension, expiration, or cancellation of the license does not invalidate the anatomical gift.

(d) A document of gift may designate a particular physician or surgeon to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the anatomical gift may employ or authorize any physician, surgeon, technician, or enucleator to carry out the appropriate procedures.

(e) An anatomical gift by will takes effect upon death of the testator, whether or not the will is probated. If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.

(f) A donor may amend or revoke an anatomical gift, not made by will, only by:

(1) a signed statement;

(2) an oral statement made in the presence of two individuals;

(3) any form of communication during a terminal illness or injury addressed to a physician or surgeon; or

(4) the delivery of a signed statement to a specified donee to whom a document of gift had been delivered.

(g) The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills, or as provided in subsection (f).

(h) An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor's death.

(i) An individual may refuse to make an anatomical gift of the individual's body or part by (i) a writing signed in the same manner as a document of gift, (ii) a statement attached to or imprinted on a donor's motor vehicle operator's or chauffeur's license, or (iii) any other writing used to identify the individual as refusing to make an anatomical gift. During a terminal illness or injury, the refusal may be an oral statement or other form of communication.

(j) In the absence of contrary indications by the donor, an anatomical gift of a part is neither a refusal to give other parts nor a limitation on an anatomical gift under section 194.217 or on a removal or release of other parts under section 194.219.

(k) In the absence of contrary indications by the donor, a revocation or amendment of an anatomical gift is not a refusal to make another anatomical gift. If the donor intends a revocation to be a refusal to make an anatomical gift, the donor shall make the refusal pursuant to subsection (i).

194.217. (a) Any member of the following classes of persons, in the order of priority listed, may make an anatomical gift of all or a part of the decedent's body for an authorized purpose, unless the decedent, at the time of death, has made an unrevoked refusal to make that anatomical gift:

(1) the spouse of the decedent;

(2) an adult son or daughter of the decedent;

(3) either parent of the decedent;

(4) an adult brother or sister of the decedent;

(5) a grandparent of the decedent; and

(6) a guardian of the person of the decedent at the time of death.

(b) An anatomical gift may not be made by a person listed in subsection (a) if:

(1) a person in a prior class is available at the time of death to make an anatomical gift;

(2) the person proposing to make an anatomical gift knows of a refusal or contrary indications by the decedent; or

(3) the person proposing to make an anatomical gift knows of an objection to making an anatomical gift by a member of the person's class or a prior class.

(c) An anatomical gift by a person authorized under subsection (a) must be made by (i) a document of gift signed by the person or (ii) the person's telegraphic, recorded telephonic, or other recorded message, or other form of communication from the person that is contemporaneously reduced to writing and signed by the recipient.

(d) An anatomical gift by a person authorized under subsection (a) may be revoked by any member of the same or a prior class if, before procedures have begun for the removal of a part from the body of the decedent, the physician, surgeon, technician, or enucleator removing the part knows of the revocation.

(e) A failure to make an anatomical gift under subsection (a) is not an objection to the making of an anatomical gift.

194.219. (a) The coroner or medical examiner may release and permit the removal of a part from a body within that official's custody, for transplantation or therapy, if:

(1) the official has received a request for the part from a hospital, physician, surgeon, or procurement organization;

(2) the official has made a reasonable effort, taking into account the useful life of the part, to locate and examine the decedent's medical records and inform persons listed in section 194.217(a) of their option to make, or object to making, an anatomical gift;

(3) the official does not know of a refusal or contrary indication by the decedent or objection by a person having priority to act as listed in section 194.217(a);

(4) the removal will be by a physician, surgeon, or technician; but in the case of eyes, by one of them or by an enucleator;

(5) the removal will not interfere with any autopsy or investigation;

(6) the removal will be in accordance with accepted medical standards; and

(7) cosmetic restoration will be done, if appropriate.

(b) If the body is not within the custody of the coroner or medical examiner, the local public health officer may release and permit the removal of any part from a body in the local public health officer's custody for transplantation or therapy if the requirements of subsection (a) are met.

(c) An official releasing and permitting the removal of a part shall maintain a permanent record of the name of the decedent, the person making the request, the date and purpose of the request, the part requested, and the person to whom it was released.

194.223. (a) On or before admission to a hospital, or as soon as possible thereafter, a person designated by the hospital shall ask each patient who is at least 18 years of age: "Are you an organ or tissue donor?" If the answer is affirmative the person shall request a copy of the document of gift. If the answer is negative or there is no answer and the attending physician consents, the person designated shall discuss with the patient the option to make or refuse to make an anatomical gift. The answer to the question, an available copy of any document of gift or refusal to make an anatomical gift, and any other relevant information, must be placed in the patient's medical record.

(b) If, at or near the time of death of a patient, there is no medical record that the patient has made or refused to make an anatomical gift, the hospital administrator or a representative designated by the administrator shall discuss the option to make or refuse to make an anatomical gift and request the making of an anatomical gift pursuant to section 194.217(a). The request must be made with reasonable discretion and sensitivity to the circumstances of the family. A request is not required if the gift is not suitable, based upon accepted medical standards, for a purpose specified in section 217.227, RSMo. An entry must be made in the medical record of the patient, stating the name and affiliation of the individual making the request, and of the name, response, and relationship to the patient of the person to whom the request was made. The director of the department of health shall adopt regulations to implement this subsection.

(c) The following persons shall make a reasonable search for a document of gift or other information identifying the bearer as a donor or as an individual who has refused to make an anatomical gift:

(1) a law enforcement officer, fireman, paramedic, or other emergency rescuer finding an individual who the searcher believes is dead or near death; and

(2) a hospital, upon the admission of an individual at or near the time of death, if there is not immediately available any other source of that information.

(d) If a document of gift or evidence of refusal to make an anatomical gift is located by the search required by subsection (c)(1), and the individual or body to whom it relates is taken to a hospital, the hospital must be notified of the contents and the document or other evidence must be sent to the hospital.

(e) If, at or near the time of death of a patient, a hospital knows that an anatomical gift has been made pursuant to section 194.217(a) or a release and removal of a part has been permitted pursuant to section 197.219, RSMo, or that a patient or an individual identified as in transit to the hospital is a donor, the hospital shall notify the donee if one is named and known to the hospital; if not, it shall notify an appropriate procurement organization. The hospital shall cooperate in the implementation of the anatomical gift or release and removal of a part.

(f) A person who fails to discharge the duties imposed by this section is not subject to criminal or civil liability but is subject to appropriate administrative sanctions.

194.227. (a) The following persons may become donees of anatomical gifts for the purposes stated:

(1) a hospital, physician, surgeon, or procurement organization, for transplantation, therapy, medical or dental education, research, or advancement of medical or dental science;

(2) an accredited medical or dental school, college, or university for education, research, advancement of medical or dental science; or

(3) a designated individual for transplantation or therapy needed by that individual.

(b) An anatomical gift may be made to a designated donee or without designating a donee. If a donee is not designated or if the donee is not available or rejects the anatomical gift, the anatomical gift may be accepted by any hospital.

(c) If the donee knows of the decedent's refusal or contrary indications to make an anatomical gift or that an anatomical gift by a member of a class having priority to act is opposed by a member of the same class or a prior class under section 194.217(a), the donee may not accept the anatomical gift.

194.231. (a) Delivery of a document of gift during the donor's lifetime is not required for the validity of an anatomical gift.

(b) If an anatomical gift is made to a designated donee, the document of gift, or a copy, may be delivered to the donee to expedite the appropriate procedures after death. The document of gift, or a copy, may be deposited in any hospital, procurement organization, or registry office that accepts it for safekeeping or for facilitation of procedures after death. On request of an interested person, upon or after the donor's death, the person in possession shall allow the interested person to examine or copy the document of gift.

194.235. (a) Rights of a donee created by an anatomical gift are superior to rights of others except with respect to autopsies under section 194.245(b). A donee may accept or reject an anatomical gift. If a donee accepts an anatomical gift of an entire body, the donee, subject to the terms of the gift, may allow embalming and use of the body in funeral services. If the gift is of a part of a body, the donee, upon the death of the donor and before embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the person under obligation to dispose of the body.

(b) The time of death must be determined by a physician or surgeon who attends the donor at death or, if none, the physician or surgeon who certifies the death. Neither the physician or surgeon who attends the donor at death nor the physician or surgeon who determines the time of death may participate in the procedures for removing or transplanting a part unless the document of gift designates a particular physician or surgeon pursuant to section 194.214(d).

(c) If there has been an anatomical gift, a technician may remove any donated parts and an enucleator may remove any donated eyes or parts of eyes, after determination of death by a physician or surgeon.

194.239. Each hospital in this state, after consultation with other hospitals and procurement organizations, shall establish agreements or affiliations for coordination of procurement and use of human bodies and parts.

194.242. (a) A person may not knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent.

(b) Valuable consideration does not include reasonable payment for the removal, processing, disposal, preservation, quality control, storage, transportation, or implantation of a part.

(c) A person who violates this section is guilty of a felony and upon conviction is subject to a fine not exceeding fifty thousand dollars or imprisonment not exceeding five years, or both.

194.245. (a) An anatomical gift authorizes any reasonable examination necessary to assure medical acceptability of the gift for the purposes intended.

(b) The provisions of sections 194.211 to 194.255 are subject to the laws of this state governing autopsies.

(c) A hospital, physician, surgeon, coroner, medical examiner, local public health officer, enucleator, technician, or other person, who acts in accordance with the provisions of sections 194.211 to 194.255 or with the applicable anatomical gift law of another state or a foreign country or attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding.

(d) An individual who makes an anatomical gift pursuant to section 194.214 or 194.217 and the individual's estate are not liable for any injury or damage that may result from the making or the use of the anatomical gift.

194.249. Sections 194.211 to 194.255 apply to a document of gift, revocation, or refusal to make an anatomical gift signed by the donor or a person authorized to make or object to making an anatomical gift on or after the effective date of sections 194.211 to 194.255.

194.252. Sections 194.211 to 194.255 shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of sections 194.211 to 194.255 among states enacting it.

194.253. If any provision of sections 194.211 to 194.255 or its application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of sections 194.211 to 194.255 which can be given effect without the invalid provision or application, and to this end the provisions of sections 194.211 to 194.255 are severable.

194.255. Sections 194.211 to 194.255 may be cited as the "Uniform Anatomical Gift Act (1987)".

[194.210. As used in sections 194.210 to 194.290, the following words and terms mean:

(1) "Bank or storage facility", a facility licensed, accredited, or approved under the laws of any state for storage of human bodies or parts thereof;

(2) "Decedent", a deceased individual and includes a stillborn infant or fetus;

(3) "Donor", an individual who makes a gift of all or part of his body;

(4) "Hospital", a hospital licensed, accredited, or approved under the laws of any state and includes a hospital operated by the United States government, a state, or a subdivision thereof, although not required to be licensed under state laws;

(5) "Part", organs, tissues, eyes, bones, arteries, blood, other fluids and any other portions of a human body;

(6) "Person", an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;

(7) "Physician" or "surgeon", a physician or surgeon licensed or authorized to practice under the laws of any state;

(8) "State" includes any state, district, commonwealth, territory, insular possession, and any other area subject to the legislative authority of the United States of America.]

[194.220. 1. Any individual of sound mind who is at least eighteen years of age may give all or any part of his body for any purpose specified in section 194.230, the gift to take effect upon death.

2. Any of the following persons, in order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purpose specified in section 194.230:

(1) The spouse,

(2) An adult son or daughter,

(3) Either parent,

(4) An adult brother or sister,

(5) A guardian of the person of the decedent at the time of his death,

(6) Any other person authorized or under obligation to dispose of the body, including an attorney in fact acting under authority of a durable power of attorney that expressly refers to making a gift of all or part of the principal's body under the Uniform Anatomical Gift Act.

3. If the donee has actual notice of contrary indications by the decedent or that a gift by a member of a class is opposed by a member of the same or a prior class, the donee shall not accept the gift. The persons authorized by subsection 2 of this section may make the gift after or immediately before death.

4. A gift of all or part of a body authorizes any examination necessary to assure medical acceptability of the gift for the purposes intended.

5. The rights of the donee created by the gift are paramount to the rights of others except as provided by subsection 4 of section 194.270.]

[194.230. The following persons may become donees of gifts of bodies or parts thereof for the purposes stated:

(1) Any hospital, surgeon, or physician, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(2) Any accredited medical or dental school, college or university or the state anatomical board for education, research, advancement of medical or dental science, or therapy; or

(3) Any bank or storage facility, for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation; or

(4) Any specified individual for therapy or transplantation needed by him.]

[194.233. 1. The chief executive officer of each hospital in this state shall designate one or more trained persons to request anatomical gifts which persons shall not be connected with determination of death. The hospital official may designate a representative of an organ or tissue procurement organization to request consent.

2. When there is a patient who is a suitable candidate for organ or tissue donation based on hospital accepted criteria the designee shall request consent to a donation from the persons authorized to give consent as specified in subdivision (1), (2), (3), or (4) of subsection 2 of section 194.220. The request shall be made in the order of priority stated in subsection 2 of section 194.220.

3. No request shall be required if the hospital designee has actual notice of contrary indications by the decedent or by a member of a prior class specified in subsection 2 of section 194.220.

4. Consent shall be obtained by the methods specified in section 194.240.

5. Where a donation is requested, the designee shall verify such request in the patient's medical record. Such verification of request for organ donation shall include a statement to the effect that a request for consent to an anatomical gift has been made, and shall further indicate thereupon whether or not consent was granted, the name of the person granting or refusing the consent, and his or her relationship to the decedent.

6. Upon the approval of the designated next of kin or other individual, as set forth in subsection 2 of section 194.220, the hospital shall then notify an organ or tissue procurement organization and cooperate in the procurement of the anatomical gift or gifts pursuant to applicable provisions of sections 194.210 to 194.290.

7. No hospital shall have an obligation to retrieve the organ or tissue donated pursuant to this section.]

[194.240. 1. A gift of all or part of the body under subsection 1 of section 194.220 may be made by will. The gift becomes 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. A gift of all or part of the body under subsection 1 of section 194.220 may also be made by document other than a will. The gift becomes effective upon the death of the donor. 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 his presence or before a notary or other official authorized to administer oaths generally. If the donor cannot sign, the document may be signed for him at his direction and in his presence in the presence of two witnesses who must sign the document in his presence. Delivery of the document of gift during the donor's lifetime is not necessary to make the gift valid.

3. The gift may be made to a specified donee or without specifying a donee. If the latter, the gift may be accepted by the attending physician as donee upon or following death. If the gift is made to a specified donee who is not available at the time and place of death, the attending physician upon or following death, in the absence of any expressed indication that the donor desired otherwise, may accept the gift as donee. The physician who becomes a donee under this subsection shall not participate in the procedures for removing or transplanting a part.

4. Notwithstanding the provisions of subsection 2 of section 194.270, the donor may designate in his will, card, or other document of gift the surgeon or physician to carry out the appropriate procedures. In the absence of a designation or if the designee is not available, the donee or other person authorized to accept the gift may employ or authorize any surgeon or physician to carry out the appropriate procedures. For the purpose of removing an eye or part thereof, any medical technician employed by a hospital, physician or eye bank and acting under supervision may perform the appropriate procedures. Any medical technician authorized to perform such procedure shall successfully complete the course prescribed in section 194.295 for embalmers.

5. Any gift by a person designated in subsection 2 of section 194.220 shall be made by a document signed by him or made by his telegraphic, recorded telephonic, or other recorded message.

6. A gift of part of the body under subsection 1 of section 194.220 may also be made by a statement on a form which shall be provided on the reverse side of all Missouri motor vehicle licenses issued pursuant to chapter 302, RSMo. The statement to be effective shall be signed by the owner of the license in the presence of two witnesses, who shall sign the statement in the presence of the donor. Use of the form is prima facie evidence that the owner of the license intended to make the anatomical gift, and there shall be no civil or criminal liability for removal of any part of the body indicated on the form by a licensed physician or surgeon. The gift becomes effective upon the death of the donor. Delivery of the license during the donor's lifetime is not necessary to make the gift valid. The gift shall become invalidated upon expiration, cancellation, revocation, or suspension of the license, and the gift must be renewed upon renewal of each license. Pertinent medical information which may affect the quality of the gift may be included in the statement of gift.

7. Any person 18 years of age or older, or any person under the age of 18 with parental consent who indicates the desire to make an organ donation through any method prescribed in this section may also contact the department of health when completing such form, so that the information may be included in the registry maintained by the department pursuant to subsection 1 of section 194.304. Failure to contact the department of health shall not be construed to challenge the validity of the organ donation.]

[194.250. If the gift is made by the donor to a specified donee, the will, card, or other document, or an executed copy thereof, may be delivered to the donee to expedite the appropriate procedures immediately after death. Delivery is not necessary to the validity of the gift. The will, card, or other document, or an executed copy thereof, may be deposited in any hospital, bank or storage facility or registry office that accepts it for safekeeping or for facilitation of procedures after death. On request of any interested party upon or after the donor's death, the person in possession shall produce the document for examination.]

[194.260. 1. If the will, card, or other document or executed copy thereof, has been delivered to a specified donee, the donor may amend or revoke the gift by:

(1) The execution and delivery to the donee of a signed statement, or

(2) An oral statement made in the presence of two persons and communicated to the donee, or

(3) A statement during a terminal illness or injury addressed to an attending physician and communicated to the donee, or

(4) A signed card or document found on his person or in his effects.

2. Any document of gift which has not been delivered to the donee may be revoked by the donor in the manner set out in subsection 1, or by destruction, cancellation, or mutilation of the document and all executed copies thereof.

3. Any gift made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills, or as provided in subsection 1.]

[194.270. 1. The donee may accept or reject the gift. If the donee accepts a gift of the entire body, he may, subject to the terms of the gift, authorize embalming and the use of the body in funeral services. If the gift is of a part of the body, the donee, upon the death of the donor and prior to embalming, shall cause the part to be removed without unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin, or other persons under obligation to dispose of the body.

2. The time of death shall be determined by a physician who tends the donor at his death, or, if none, the physician who certifies the death. The physician shall not participate, directly or indirectly, in the procedures for removing or transplanting a part or be a relative within the fourth degree of consanguinity of any donee of a body or part thereof which is removed or transplanted.

3. A person who acts without negligence and in good faith in accord with the terms of this act or with the anatomical gift laws of another state or a foreign country is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act.

4. The provisions of this act are subject to the laws of this state prescribing powers and duties with respect to autopsies.]

[194.280. Sections 194.210 to 194.290 shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.]

[194.290. Sections 194.210 to 194.290 may be cited as the "Uniform Anatomical Gift Act".]