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Public Act 098-0172
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HB2339 Enrolled | LRB098 08840 HEP 38968 b |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Anatomical Gift Act is amended by |
changing Sections 1-5, 1-10, 5-5, 5-15, 5-20, 5-25, 5-27, 5-35, |
5-45, and 5-50 and by adding Sections 5-7, 5-12, 5-42, 5-43, |
5-47, and 5-55 as follows:
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(755 ILCS 50/1-5)
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Sec. 1-5. Purpose. Illinois recognizes that there is a |
critical shortage
of human organs and tissues available
to |
citizens in need of organ and tissue transplants. This shortage |
leads to the
untimely death of
many adults and children in |
Illinois and across the nation each year. This Act
is intended |
to
implement the public policy of encouraging timely donation |
of human organs and
tissue in
Illinois , and facilitating |
transplantation transplants of those organs and tissue into |
patients
in need of them , and encouraging anatomical gifts for |
therapy, research, or education .
Through this Act, laws |
relating to organ and tissue donation and
transplantation are |
consolidated
and modified for the purpose of furthering this |
public policy , and for the purpose of establishing consistency |
between this Act and the core provisions of the Revised Uniform |
Anatomical Gift Act drafted by the National Conference of |
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Commissioners on Uniform State Laws .
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(Source: P.A. 93-794, eff. 7-22-04.)
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(755 ILCS 50/1-10) (was 755 ILCS 50/2)
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Sec. 1-10. Definitions.
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"Bank or storage facility" means a
facility licensed, |
accredited or
approved under the laws of any state for storage |
of human bodies or parts
thereof.
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"Close friend" means any person 18 years of age or older |
who has exhibited
special care
and concern for the decedent and |
who presents an affidavit to the decedent's
attending |
physician,
or the hospital administrator or his or her |
designated representative, stating
that he or she (i) was a
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close friend of the decedent, (ii) is willing and able to |
authorize consent to the
donation, and (iii)
maintained such |
regular contact with the decedent as to be familiar with the
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decedent's health
and social history, and religious and moral |
beliefs. The affidavit must also
state facts and
circumstances |
that demonstrate that familiarity.
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"Death" means , for the purposes of the Act, when, according |
to accepted medical standards, there is (i) an irreversible |
cessation of circulatory and respiratory functions; or (ii) an |
irreversible cessation of all functions of the entire brain, |
including the brain stem the irreversible
cessation
of total |
brain function, according to usual and customary standards of |
medical
practice .
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"Decedent" means a deceased individual and includes a |
stillborn
infant or fetus.
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"Disinterested witness" means a witness other than the |
spouse, child, parent, sibling, grandchild, grandparent, or |
guardian of the individual who makes, amends, revokes, or |
refuses to make an anatomical gift, or another adult who |
exhibited special care and concern for the individual. The term |
does not include a person to whom an anatomical gift could pass |
under Section 5-12. |
"Document of gift" means a donor card or other record used |
to make an anatomical gift. The term includes a donor registry. |
"Donee" means the individual designated by the donor as the |
intended recipient or an entity which receives the anatomical |
gift, including, but not limited to, a hospital; an accredited |
medical school, dental school, college, or university; an organ |
procurement organization; an eye bank; a tissue bank; for |
research or education, a non-transplant anatomic bank; or other |
appropriate person. |
"Donor" means an individual whose body or part is the |
subject of an anatomical gift. who makes a gift of all or parts |
of his
body.
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"Federally designated organ procurement agency" means the |
organ procurement
agency
designated by the Secretary of the |
U.S. Department of Health and Human Services
for the
service |
area in which a hospital is located, or the organ procurement |
agency
for which the U.S.
Secretary of Health and Human |
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Services has granted the hospital a waiver
pursuant to 42 |
U.S.C.
1320b-8(a) .
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"Hospital" means 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.
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"Non-transplant anatomic bank" means any facility or |
program operating or providing services in this State that is |
accredited by the American Association of Tissue Banks and that |
is involved in procuring, furnishing, or distributing whole |
bodies or parts for the purpose of medical education. For |
purposes of this Section, a non-transplant anatomic bank |
operating under the auspices of a hospital, accredited medical |
school, dental school, college or university, or federally |
designated organ procurement organization is not required to be |
accredited by the American Association of Tissue Banks. |
"Not available" for the giving of consent or refusal means:
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(1) the existence of the person is unknown to the hospital |
administrator or
designee,
organ procurement agency, or tissue |
bank and is not readily ascertainable
through the
examination |
of the decedent's hospital records and the questioning of any
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persons who are
available for giving consent;
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(2) the administrator or designee, organ procurement |
agency, or tissue bank
has
unsuccessfully attempted to contact |
the person by telephone or in any other
reasonable manner;
or
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(3) the person is unable or unwilling to respond in a |
manner that indicates
the person's
refusal or consent.
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"Organ" means a human kidney, liver, heart, lung, pancreas, |
small bowel, or
other
transplantable vascular body part as |
determined by the Organ Procurement and
Transplantation
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Network, as periodically selected by the U.S. Department of |
Health and Human
Services.
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"Organ procurement organization" means the organ |
procurement organization designated by the Secretary of the |
U.S. Department of Health and Human Services for the service |
area in which a hospital is located, or the organ procurement |
organization for which the Secretary of the U.S. Department of |
Health and Human Services has granted the hospital a waiver |
pursuant to 42 U.S.C. 1320b-8(a). |
"Tissue" means eyes, bones, heart valves, veins, skin, and |
any other portions
of
a human
body excluding blood, blood |
products or organs.
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"Part" means organs, tissues, eyes, bones, arteries, |
blood, other
fluids and any other portions of a human body.
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"Person" means an individual, corporation, government or
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governmental subdivision or agency, business trust, estate, |
trust,
partnership or association or any other legal entity.
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"Physician" or "surgeon" means a physician or surgeon |
licensed or
authorized to practice medicine in all of its |
branches under the laws of
any state.
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"Procurement organization" means an organ procurement |
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organization or a tissue bank. |
"Reasonably available for the giving of consent or refusal" |
means being able to be contacted by a procurement organization |
without undue effort and being willing and able to act in a |
timely manner consistent with existing medical criteria |
necessary for the making of an anatomical gift. |
"Recipient" means an individual into whose body a donor's |
part has been or is intended to be transplanted. |
"State" includes any state, district, commonwealth, |
territory,
insular possession, and any other area subject to |
the legislative authority
of the United States of America.
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"Technician" means an individual trained and certified to |
remove
tissue, by a recognized medical training institution in |
the State of
Illinois.
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"Tissue" means eyes, bones, heart valves, veins, skin, and |
any other portions
of
a human
body excluding blood, blood |
products or organs. |
"Tissue bank" means any facility or program operating in |
Illinois that is
accredited certified by
the American |
Association of Tissue Banks, the Eye Bank Association of |
America,
or the
Association of Organ Procurement Organizations |
and is involved in procuring,
furnishing,
donating, or |
distributing corneas, bones, or other human tissue for the |
purpose
of injecting,
transfusing, or transplanting any of them |
into the human body or for the purpose of research or |
education . "Tissue bank"
does not include
a licensed blood |
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bank. For the purposes of this Act, "tissue" does not include
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organs or blood or
blood products.
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(Source: P.A. 93-794, eff. 7-22-04 .)
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(755 ILCS 50/5-5) (was 755 ILCS 50/3)
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Sec. 5-5. Persons who
may execute an anatomical gift.
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(a) An anatomical gift of a donor's body or part that is to |
be carried out upon the donor's death may be made during the |
life of the donor for the purpose of transplantation, therapy, |
research, or education by: |
(1) the donor, if the donor is an adult or if the donor |
is an emancipated minor; |
(2) an agent of the donor, unless the power of attorney |
for health care or other record prohibits the agent from |
making an anatomical gift; |
(3) a parent of the donor, if the donor is an |
unemancipated minor; or |
(4) the donor's guardian. |
Any individual of sound mind who has attained the age of 18 |
may give all
or
any
part of his or her body for any purpose |
specified in Section 5-10.
Such
a gift may be executed in any |
of the ways set out in Section
5-20, and shall take
effect upon |
the individual's death without the need to obtain the
consent |
of any survivor. An anatomical gift made by an agent of an
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individual, as authorized by the individual under the Powers of |
Attorney
for Health Care Law, as now or hereafter amended, is |
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deemed to be a gift by
that individual and takes effect without |
the need to obtain the consent of
any other person.
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(b) If no gift has been executed under subsection (a), an |
anatomical gift of a decedent's body or part for the purpose of |
transplantation, therapy, research, or education may be made at |
the time of the decedent's death, or when death is imminent, by |
a member of the following classes of persons who is reasonably |
available for the giving of authorization or refusal, in the |
order of priority listed any of the
following persons, in
the |
order of priority stated in items (1) through (11) below , when
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persons
in prior classes are not available for the giving of |
authorization consent or refusal and
in the absence of (i) |
actual notice
of contrary intentions by the decedent and (ii) |
actual notice of opposition
by any member within the same |
priority class, may consent to give all or
any part
of the |
decedent's
body after or immediately before death to a person |
who may become a donee
for any purpose specified in Section |
5-10 :
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(1) an individual acting as the decedent's agent under |
a
power of attorney for health
care ; ,
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(2) the guardian of the person of the decedent; |
(3) the spouse or civil union partner of the decedent; |
(4) an adult child of the decedent; |
(5) a parent of the decedent; |
(6) an adult sibling of the decedent; |
(7) an adult grandchild of the decedent; |
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(8) a grandparent of the decedent; |
(9) a close friend of the decedent; |
(10) the guardian of the estate of the decedent; and |
(2) the decedent's surrogate decision maker identified |
by the attending
physician in accordance with the Health |
Care Surrogate Act,
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(3) the guardian of the decedent's person at the time |
of death,
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(4) the decedent's spouse,
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(5)
any of the decedent's adult sons or daughters,
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(6) either of the decedent's parents,
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(7) any of the decedent's adult brothers or sisters,
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(8) any adult grandchild of the decedent,
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(9) a close friend of the decedent,
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(10) the guardian of the decedent's estate,
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(11) any other person authorized or under legal
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obligation to dispose of
the body.
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If the donee has actual notice of opposition to the gift by |
the decedent
or any person in the highest priority class in |
which an available person
can be found, then no gift of all or |
any part of the decedent's body shall be
accepted.
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(b-5) If there is more than one member of a class listed in |
item (2), (4), (5), (6), or (7) of subsection (b) 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 Section 5-12 knows of |
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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 for the giving of |
authorization or refusal. |
(b-10) A person may not make an anatomical gift if, at the |
time of the decedent's death, a person in a higher priority |
class under subsection (b) of this Section is reasonably |
available for the giving of authorization or refusal. |
(c) A gift of all or part of a body authorizes any blood or |
tissue test or minimally invasive examination
necessary
to |
assure medical acceptability of the gift for the purposes |
intended.
The hospital shall, to the extent possible and in |
accordance with any agreement with the organ procurement |
organization or tissue bank, take measures necessary to |
maintain the medical suitability of the part until the |
procurement organization has had the opportunity to advise the |
applicable persons as set forth in this Act of the option to |
make an anatomical gift or has ascertained that the individual |
expressed a contrary intent and has so informed the hospital. |
The results of tests and examinations under this subsection |
shall be used or disclosed only for purposes of evaluating |
medical suitability for donation, to facilitate the donation |
process, and as required or permitted by existing law.
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(d) The rights of the donee created by the gift are |
paramount to
the
rights of others except as provided by Section |
5-45(d).
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(e) If no gift has been executed under this Act, then no
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part of the
decedent's body may be used for any purpose |
specified in this
Act.
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(Source: P.A. 92-349, eff. 1-1-02; 93-794, eff. 7-22-04.)
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(755 ILCS 50/5-7 new) |
Sec. 5-7. Preclusive effect of anatomical gift, amendment, |
or revocation. |
(a) 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 changing, amending, |
or revoking an anatomical gift of a donor's body or part if the |
donor made an anatomical gift of the donor's body or part under |
Section 5-20 or an amendment to an anatomical gift of the |
donor's body or part under Section 5-42. |
(b) A donor's revocation of an anatomical gift of the |
donor's body or part under Section 5-42 is not a refusal and |
does not bar another person specified in subsection (a) or (b) |
of Section 5-5 from making an anatomical gift of the donor's |
body or part under subsection (a), (b), (e), or (e-5) of |
Section 5-20. |
(c) If a person other than the donor makes an unrevoked |
anatomical gift of the donor's body or part under subsection |
(a) or (b) of Section 5-20, or an amendment to an anatomical |
gift of the donor's body or part under Section 5-42, another |
person may not make, amend, or revoke the gift of the donor's |
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body or part under subsection (e) or (e-5) of Section 5-20. |
(d) In the absence of an express, contrary indication by |
the donor or other person authorized to make an anatomical |
gift, a revocation of an anatomical gift of a donor's body or |
part under Section 5-42 by a person other than the donor does |
not bar another person from making an anatomical gift of the |
body or part under subsection (a), (b), (e), or (e-5) of |
Section 5-20. |
(e) In the absence of an express, contrary indication by |
the donor or other person authorized to make an anatomical gift |
under subsection (a) of Section 5-5, an anatomical gift of a |
part is neither a refusal to give another part nor a limitation |
on the making of an anatomical gift of another 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 subsection (a) of Section 5-5, an anatomical gift of a |
part for one or
more of the purposes set forth in subsection |
(a) of Section 5-5 is not a limitation on the making of an |
anatomical gift of the part for any of the other purposes by |
the donor or any other person under subsection (a), (b), (b-5), |
(b-10), (e), or (e-5) of Section 5-20.
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(755 ILCS 50/5-12 new) |
Sec. 5-12. Persons who may receive an anatomical gift; |
purpose of anatomical gift. |
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(a) An anatomical gift may be made to the following persons |
named in the document of gift: |
(1) for research or education, a hospital; an |
accredited medical school, dental school, college, or |
university; an organ procurement organization; or other |
appropriate person; |
(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 part; |
(3) an eye bank or tissue bank; or |
(4) for research or education, a non-transplant |
anatomic bank. |
(b) If an anatomical gift to an individual under item (2) |
of subsection (a) of this Section cannot be transplanted into |
the individual, the part passes in accordance with subsection |
(g) of this Section unless there is an express, contrary |
indication by the person making the anatomical gift. |
(c) If an anatomical gift of one or more specific parts or |
of all 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 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 part is tissue and the gift is for the |
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purpose of transplantation or therapy, the gift passes to |
the appropriate tissue bank. |
(3) If the 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 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, and 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 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 or research, 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 or research, and the gift passes in accordance with |
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subsection (g) of this Section. |
(g) For purposes of subsections (b), (e), and (f) of this |
Section, the following rules apply: |
(1) If the part is an eye, the gift passes to the |
appropriate eye bank. |
(2) If the part is tissue, the gift passes to the |
appropriate tissue bank. |
(3) If the 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 item (2) of |
subsection (a) of this Section, passes to the organ procurement |
organization as custodian of the organ. |
(i) If an anatomical gift does not pass under this Section |
or the decedent's body or part is not used for transplantation, |
therapy, research, or education, custody of the body or part |
passes to the person under obligation to dispose of the body or |
part. |
(j) A person may not accept an anatomical gift if the |
person knows that the gift was not effectively made under |
Section 5-5 or subsection (e) or (e-5) of Section 5-20 or if |
the person knows that the decedent made a refusal under Section |
5-43 that was not revoked. |
(k) Except as otherwise provided in item (2) of subsection |
(a) of this Section, nothing in this Act affects the allocation |
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of organs for transplantation or therapy.
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(755 ILCS 50/5-15) (was 755 ILCS 50/4.5)
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Sec. 5-15. Disability of recipient.
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(a) No hospital, physician and surgeon, procurement |
organization bank or storage facility , or other
person shall |
determine the ultimate recipient of an anatomical gift based |
upon
a potential recipient's physical or mental disability, |
except to the extent
that the physical or mental disability has |
been found by a physician and
surgeon, following a case-by-case |
evaluation of the potential recipient, to be
medically |
significant to the provision of the anatomical
gift.
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(b) Subsection (a) shall apply to each part of the organ |
transplant process.
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(c) The court shall accord priority on its calendar and |
handle
expeditiously any action brought to seek any remedy |
authorized by law for
purposes of enforcing compliance with |
this Section.
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(d) This Section shall not be deemed to require referrals |
or
recommendations for or the performance of medically |
inappropriate organ
transplants.
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(e) As used in this Section "disability" has the same |
meaning as in the
federal Americans with Disabilities Act of |
1990 (42 U.S.C. 12101 et seq.,
Public Law 101-336) as may be |
amended from time to time.
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(Source: P.A. 93-794, eff. 7-22-04.)
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(755 ILCS 50/5-20) (was 755 ILCS 50/5)
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Sec. 5-20. Manner of Executing Anatomical Gifts.
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(a) A donor may make an anatomical gift: |
(1) by authorizing a statement or symbol indicating |
that the donor has made an anatomical gift to be imprinted |
on the donor's driver's license or identification card; |
(2) in a will; |
(3) during a terminal illness or injury of the donor, |
by any form of communication addressed to at least 2 |
adults, at least one of whom is a disinterested witness; or |
(4) as provided in subsection (b) of this Section. |
A gift of all or part of the body under Section 5-5 (a) 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.
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(b) A donor or other person authorized to make an |
anatomical gift under subsection (a) of Section 5-5 may make a |
gift by a 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 |
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person and must: |
(1) be witnessed by at least 2 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 paragraph (1) of this subsection (b). |
A gift of all or part of the body under Section 5-5 (a) may
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also be
made by a written, signed document other than a will. |
The gift becomes
effective upon the death of the donor. The |
document, which may be a card
or a valid driver's license |
designed to be carried on the person, is effective without |
regard to the presence or signature of witnesses.
Such a gift |
may also be made by properly executing the form provided by
the |
Secretary of State on the reverse side of the donor's driver's |
license
pursuant to subsection (b) of Section 6-110 of The |
Illinois Vehicle Code.
Delivery of the document of gift during |
the donor's lifetime is not
necessary to make the gift valid.
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(b-1) A gift under Section 5-5 (a) may also be made by an |
individual consenting to have his or her name included in the |
First Person Consent organ and tissue donor registry maintained |
by the Secretary of State under Section 6-117 of the Illinois |
Vehicle Code. An individual's consent to have his or her name |
included in the First Person Consent organ and tissue donor |
registry constitutes full legal authority for the donation of |
any of his or her organs or tissue for purposes of |
transplantation, therapy, or research . Consenting to be |
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included in the First Person Consent organ and tissue donor |
registry is effective without regard to the presence or |
signature of witnesses.
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(b-5) Revocation, suspension, expiration, or cancellation |
of a driver's license or identification card upon which an |
anatomical gift is indicated does not invalidate the gift. |
(b-10) 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. |
(c) The anatomical 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, then if made for the
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purpose of transplantation, it shall be effectuated in |
accordance with Section
5-25 , and if made for any other purpose |
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 .
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(d) The donee or other person authorized to accept the gift |
pursuant to Section 5-12
may employ or authorize any qualified |
technician, surgeon, or physician to perform the recovery. |
Notwithstanding Section 5-45 (b), the donor may designate in
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his will,
card, or other document of gift the surgeon or |
physician to carry out the
appropriate procedures. In the |
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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 for the purpose.
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(e) A person authorized to make an anatomical gift under |
subsection (b) of Section 5-5 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. Any gift by |
a person designated in Section 5-5 (b) shall be
made by a
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document signed by him or made by his telegraphic, recorded |
telephonic, or
other recorded message.
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(e-5) An anatomical gift by a person authorized under |
subsection (b) of Section 5-5 may be amended or revoked orally |
or in a record by a member of a prior class who is reasonably |
available for the giving of authorization or refusal. If more |
than one member of the prior class is reasonably available for |
the giving of authorization or refusal, the gift made by a |
person authorized under subsection (b) of Section 5-5 may be: |
(1) amended only if a majority of the class members |
reasonably available for the giving of authorization or |
refusal agree to the amending of the gift; or |
(2) revoked only if a majority of the class members |
reasonably available for the giving of authorization or |
refusal agree to the revoking of the gift or if they are |
equally divided as to whether to revoke the gift. |
|
(e-10) A revocation under subsection (e-5) is effective |
only if, before an incision has been made to remove a part from |
the donor's body or before invasive procedures have been |
commenced to prepare the recipient, the procurement |
organization, non-transplant anatomic bank, transplant |
hospital, or physician or technician knows of the revocation. |
(f) When there is a suitable candidate for organ donation |
and a donation or consent to donate has not yet been given, |
procedures to preserve the decedent's body for possible organ |
and tissue donation may be implemented under the authorization |
of the applicable organ procurement organization agency , at its |
own expense, prior to making a donation request pursuant to |
Section 5-25. If the organ procurement organization agency does |
not locate a person authorized to consent to donation or |
consent to donation is denied, then procedures to preserve the |
decedent's body shall be ceased and no donation shall be made. |
The organ procurement organization agency shall respect the |
religious tenets of the decedent, if known, such as a pause |
after death, before initiating preservation services. Nothing |
in this Section shall be construed to authorize interference |
with the coroner in carrying out an investigation or autopsy.
|
(Source: P.A. 93-794, eff. 7-22-04; 94-75, eff. 1-1-06; 94-920, |
eff. 1-1-07.)
|
(755 ILCS 50/5-25)
|
Sec. 5-25. Notification; authorization consent . |
|
(a) Each hospital in this State shall enter into agreements |
or affiliations with procurement organizations for |
coordination of procurement and use of anatomical gifts. When, |
based upon generally accepted medical standards, an inpatient |
in a
general acute care hospital with more than 100 beds is a |
suitable candidate for
organ or tissue
donation and the patient |
has not made an anatomical gift of all or any part of
his or her |
body
pursuant to Section 5-20 of this Act, the hospital |
(b) Hospitals shall proceed in accordance
with the |
applicable
requirements of 42 CFR 482.45 or any successor |
provisions of federal statute or
regulation, as may
be amended |
from time to time, with regard to collaboration with |
procurement organizations to facilitate organ, tissue, and eye |
donation and the written agreement between the hospital
and
the |
applicable
organ procurement agency executed thereunder .
|
(b) In making a request for organ or tissue donation, the |
hospital or the
hospital's
federally designated organ |
procurement organization agency or tissue bank shall request |
any
of the
following persons, in the order of priority stated |
in items (1) through (11)
below, when persons
in prior classes |
are not available and in the absence of (i) actual notice of
|
contrary intentions
by the decedent, (ii) actual notice of |
opposition by any member within the same
priority class,
and |
(iii) reason to believe that an anatomical gift is contrary to |
the
decedent's religious beliefs,
to authorize consent to the |
gift of all or any part of the decedent's body for any
purpose |
|
specified in Section 5-12
5-10 of this Act :
|
(1) an individual acting as the decedent's agent under |
a power of attorney
for
health care;
|
(2) the guardian of the person of the decedent; |
(3) the spouse or civil union partner of the decedent; |
(4) an adult child of the decedent; |
(5) a parent of the decedent; |
(6) an adult sibling of the decedent; |
(7) an adult grandchild of the decedent; |
(8) a grandparent of the decedent; |
(9) a close friend of the decedent; |
(10) the guardian of the estate of the decedent; and |
(2) the decedent's surrogate decision maker identified |
by the attending
physician in
accordance with the Health |
Care Surrogate Act;
|
(3) the guardian of the decedent's person at the time |
of death;
|
(4) the decedent's spouse;
|
(5) any of the decedent's adult sons or daughters;
|
(6) either of the decedent's parents;
|
(7) any of the decedent's adult brothers or sisters;
|
(8) any adult grandchild of the decedent;
|
(9) a close friend of the decedent;
|
(10) the guardian of the decedent's estate; or
|
(11) any other person authorized or under legal |
obligation to dispose of
the
body.
|
|
(c) (Blank). If (1) the hospital, the applicable organ |
procurement agency, or the
tissue bank
has actual notice of |
opposition to the gift by the decedent or any person in
the |
highest priority
class in which an available person can be |
found, or (2) there is reason to
believe that an
anatomical |
gift is contrary to the decedent's religious beliefs, or (3) |
the
Director of Public
Health has adopted a rule signifying his |
or her determination that the need for
organs and tissues
for |
donation has been adequately met, then the gift of all or any |
part of the
decedent's body
shall not be requested. If a |
donation is requested, consent or refusal may
be obtained
only |
from the person or persons in the highest priority class |
available. If the
hospital
administrator, or his or her |
designated representative, the designated organ
procurement
|
agency, or the tissue bank is unable to obtain consent from any |
of the persons
named in items (1) through (11) of subsection |
(b) of this Section, the
decedent's body shall not be used for |
an
anatomical gift unless a valid anatomical gift document was |
executed under this
Act.
|
(d) (Blank). When there is a suitable candidate for organ |
donation, as described in
subsection (a), or if consent to |
remove organs and tissues is granted, the
hospital shall
notify |
the
applicable federally designated organ procurement agency. |
The federally
designated organ
procurement agency shall notify |
any tissue bank specified by the hospital of
the suitable
|
candidate for tissue donation. The organ procurement agency |
|
shall collaborate
with all
tissue banks in Illinois to maximize |
tissue procurement in a timely manner.
|
(Source: P.A. 93-794, eff. 7-22-04.)
|
(755 ILCS 50/5-27) (was 755 ILCS 60/3.5)
|
Sec. 5-27. Notification of patient; family rights and |
options after circulatory death . |
(a) In this Section, "donation after circulatory cardiac |
death" means the donation of organs from a ventilated patient |
whose death is declared based upon cardiopulmonary, and not |
neurological, criteria, following the implementation of the |
decision to withdraw life support without a certification of |
brain death and with a do-not-resuscitate order, if a decision |
has been reached by the physician and the family to withdraw |
life support and if the donation does not occur until after the |
declaration of cardiac death . |
(b) If (i) a potential organ donor, or an individual given |
authority under subsection (b) of Section 5-25 to consent to an |
organ donation, expresses an interest in organ donation, (ii) |
there has not been a certification of brain death for the |
potential donor, and (iii) the potential donor is a patient at |
a hospital that does not allow donation after circulatory |
cardiac death, then the organ procurement organization agency |
shall inform the patient or the individual given authority to |
consent to organ donation that the hospital does not allow |
donation after circulatory cardiac death.
|
|
(c) In addition to providing oral notification, the organ |
procurement organization agency shall develop a written form |
that indicates to the patient or the individual given authority |
to consent to organ donation, at a minimum, the following |
information:
|
(1) That the patient or the individual given authority |
to consent to organ donation has received literature and |
has been counseled by (representative's name) of the (organ |
procurement organization agency name). |
(2) That all organ donation options have been explained |
to the patient or the individual given authority to consent |
to organ donation, including the option of donation after |
circulatory cardiac death. |
(3) That the patient or the individual given authority |
to consent to organ donation is aware that the hospital |
where the potential donor is a patient does not allow |
donation after circulatory cardiac death.
|
(4) That the patient or the individual given authority |
to consent to organ donation has been informed of the right |
to request a patient transfer to a facility allowing |
donation after circulatory cardiac death. |
(5) That the patient or the individual given authority |
to consent to organ donation has been informed of another |
hospital that will allow donation after circulatory |
cardiac death and will accept a patient transfer for the |
purpose of donation after circulatory cardiac death; and |
|
that the cost of transferring the patient to that other |
hospital will be covered by the organ procurement |
organization agency , with no additional cost to the patient |
or the individual given authority to consent to organ |
donation. |
The form required under this subsection must include a |
place for the signatures of the patient or the individual given |
authority to consent to organ donation and the representative |
of the organ procurement organization agency and space to |
provide the date that the form was signed.
|
(Source: P.A. 95-331, eff. 8-21-07.)
|
(755 ILCS 50/5-35) (was 755 ILCS 50/6)
|
Sec. 5-35. Delivery of
document of anatomical gift not |
required; right to examine Document of Gift .
|
(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 Section 5-12. |
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.
|
(Source: P.A. 93-794, eff. 7-22-04.)
|
(755 ILCS 50/5-42 new) |
Sec. 5-42. Amending or revoking anatomical gift before |
donor's death. |
(a) Subject to Section 5-7, a donor or other person |
authorized to make an anatomical gift under subsection (a) of |
Section 5-5 may amend or revoke an anatomical gift by: |
(1) a record signed by: |
(A) the donor; |
(B) the other authorized 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 under subdivision (a)(1)(C) of this |
Section must: |
(1) be witnessed by at least 2 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 paragraph (1) of this subsection (b). |
(c) Subject to Section 5-7, a donor or other person |
authorized to make an anatomical gift under subsection (a) of |
Section 5-5 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 2 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.
|
(755 ILCS 50/5-43 new) |
Sec. 5-43. Refusal to make anatomical gift; effect of |
refusal. |
|
(a) An individual may refuse to make an anatomical gift of |
the individual's body or 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 2 adults, at least one of whom is a |
disinterested witness. |
(b) A record signed under subdivision (a)(1)(B) of this |
Section must: |
(1) be witnessed by at least 2 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 paragraph (1) of this subsection (b). |
(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 under |
subsection (a), (b), (b-5), or (b-10) of Section 5-20 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) 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 part bars all other persons from making an |
anatomical gift of the individual's body or part.
|
(755 ILCS 50/5-45) (was 755 ILCS 50/8) |
Sec. 5-45. Rights and Duties at Death.
|
(a) The donee may accept or
reject
the anatomical 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, unless a person named in subsection |
(b) of Section 5-5
has requested, prior to the final |
disposition by the donee, that the remains
of said body be |
returned to his or her custody for the purpose of final
|
disposition. Such request shall be honored by the donee if the |
terms of
the gift are silent on how final disposition is to |
take place. If the
gift is of a part of the body, the donee or |
technician designated by him
upon the death of the donor and |
prior to embalming, shall cause the part to
be removed without |
|
unnecessary mutilation and without undue delay in the
release |
of the body for the purposes of final disposition. 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, in the order of or priority |
listed in subsection (b) of Section 5-5 of this Act .
|
(b) The time of death shall be determined by a physician |
who attends the
donor at his death, or, if none, the physician |
who certifies the death. The
physician shall not participate in |
the procedures for removing or
transplanting a part.
|
(c) A person who acts or attempts in good faith to act in |
accordance with this Act, the Illinois Vehicle Code, the AIDS |
Confidentiality Act, or the applicable anatomical gift law of |
another state is not liable for the act in a civil action, |
criminal prosecution, or administrative proceeding. 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. In determining whether an anatomical gift has |
been made, amended, or revoked under this Act, a person may |
rely upon representations of an individual listed in item (2), |
(3), (4), (5), (6), (7), or (8) of subsection (b) of Section |
5-5 relating to the individual's relationship to the donor or |
prospective donor unless the person knows that the |
representation is untrue. A person who acts in good faith in |
accord with the terms of this Act, the Illinois Vehicle Code,
|
and the AIDS Confidentiality Act, or 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.
Any person that participates |
in good faith and according to the usual and
customary |
standards of medical practice in the preservation, removal, or |
transplantation
of any part of a decedent's body pursuant to an |
anatomical gift made by the
decedent under Section 5-20 of this |
Act or pursuant to an anatomical
gift made
by an individual as |
authorized by subsection (b) of Section 5-5 of
this Act
shall |
have immunity from liability, civil, criminal, or otherwise, |
that
might result by reason of such actions. For the purpose of |
any
proceedings, civil or criminal, the validity of an |
anatomical gift executed
pursuant to Section 5-20 of this Act |
shall be presumed and the good
faith of
any person |
participating in the removal or transplantation of any part of |
a
decedent's body pursuant to an anatomical gift made by the |
decedent or by
another individual authorized by the Act shall |
be presumed.
|
(d) This Act is subject to the provisions of "An Act to |
revise the law
in relation to coroners", approved February 6, |
1874, as now or hereafter
amended, to the laws of this State |
prescribing powers and duties with
respect to autopsies, and to |
the statutes, rules, and regulations of this
State with respect |
to the transportation and disposition of deceased human
bodies.
|
(e) If the donee is provided information, or determines |
through
independent examination, that there is evidence that |
|
the anatomical gift was exposed
to the human immunodeficiency |
virus (HIV) or any other identified causative
agent of acquired |
immunodeficiency syndrome (AIDS), the donee may reject
the gift |
and shall treat the information and examination results as a
|
confidential medical record; the donee may disclose only the |
results
confirming HIV exposure, and only to the physician of |
the deceased donor.
The donor's physician shall determine |
whether the person who executed the
gift should be notified of |
the confirmed positive test result.
|
(Source: P.A. 93-794, eff. 7-22-04; 94-75, eff. 1-1-06; 94-920, |
eff. 1-1-07.)
|
(755 ILCS 50/5-47 new) |
Sec. 5-47. Rights and duties of procurement organizations |
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 Secretary of State 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 shall be allowed reasonable |
access to information in the records of the Secretary of State |
to ascertain whether an individual at or near death is a donor. |
(c) Unless prohibited by law other than this Act, at any |
time after a donor's death, the person to which a part passes |
|
under Section 5-12 may conduct any reasonable examination |
necessary to ensure the medical suitability of the body or part |
for its intended purpose. |
(d) Unless prohibited by law other than this Act, an |
examination under subsection (c) may include an examination of |
all medical and dental records of the donor or prospective |
donor. |
(e) Upon referral by a hospital under subsection (a) of |
this Section, a procurement organization shall make a |
reasonable search for any person listed in subsection (b) of |
Section 5-5 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. |
(f) Subject to subsection (i) of Section 5-12, the rights |
of the person to which a part passes under Section 5-12 are |
superior to the rights of all others with respect to the 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 |
Act, a person who 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 part, the person to |
which the part passes under Section 5-12, upon the death of the |
donor and before embalming, burial, or cremation, shall cause |
the part to be removed without unnecessary mutilation. |
|
(g) 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. |
(h) A physician or technician may remove a donated part |
from the body of a donor that the physician or technician is |
qualified to remove.
|
(755 ILCS 50/5-50) (was 755 ILCS 50/8.1)
|
Sec. 5-50. Payment for anatomical gift. |
(a) Except as provided in
subsection
(b), any person who |
knowingly pays or offers to pay any financial
consideration to |
a donor or to any of the persons listed in subsection (b)
of |
Section 5-5 for making or authorizing consenting to an |
anatomical gift shall
be guilty
of a Class A misdemeanor for |
the first conviction and a Class 4 felony for
subsequent |
convictions.
|
(b) This Section does not prohibit reimbursement for |
reasonable costs
associated with the removal, processing, |
preservation, quality control, storage, transportation, |
implantation, or disposal removal, storage or transportation |
of a human body or
part thereof pursuant to an anatomical gift |
executed pursuant to this Act.
|
(Source: P.A. 93-794, eff. 7-22-04.)
|
(755 ILCS 50/5-55 new) |
|
Sec. 5-55. Law governing validity; choice of law as to the |
execution of document of anatomical gift; presumption of |
validity. |
(a) A document of gift is valid if executed in accordance |
with: |
(1) this Act; |
(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, had 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.
|
(755 ILCS 50/5-10 rep.) |
(755 ILCS 50/5-30 rep.)
|
(755 ILCS 50/5-40 rep.) |
Section 10. The Illinois Anatomical Gift Act is amended by |
repealing Sections 5-10, 5-30, and 5-40.
|
Section 99. Effective date. This Act takes effect January |
1, 2014.
|