Bill Text: NY A07800 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to definitions and conforming changes pertaining to anatomical gifts (Part A); gift revocation (Part B); dispositions of gifts (Part C); documents of gifts (Part D); duties of donees (Part E); advance directives (Part F); and prohibition of sales of organs (Part G).
Spectrum: Bipartisan Bill
Status: (Passed) 2019-12-26 - APPROVAL MEMO.87 [A07800 Detail]
Download: New_York-2019-A07800-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7800--A 2019-2020 Regular Sessions IN ASSEMBLY May 23, 2019 ___________ Introduced by M. of A. GOTTFRIED, ORTIZ, PALMESANO, RAIA -- read once and referred to the Committee on Health -- reported and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the public health law, in relation to definitions and conforming changes pertaining to anatomical gifts (Part A); to amend the public health law, in relation to changes in anatomical gift revo- cation and amendment; and to repeal certain provisions of such law relating thereto (Part B); to amend the public health law, in relation to uses and dispositions of anatomical gifts; and to repeal certain provisions of such law relating thereto (Part C); to amend the public health law, in relation to delivery of documents of gift (Part D); to amend the public health law, in relation to rights and duties of donees at death (Part E); to amend the public health law, in relation to interactions between advance directives and anatomical gifts (Part F); and to amend the public health law, in relation to prohibition of sales or purchase of human organs (Part G) The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative intent. The purpose of this legislation is to 2 incorporate the amended provisions of the Uniform Anatomical Gift Act 3 (UAGA) as drafted by the National Conference of Commissioners on Uniform 4 State Laws to enhance the organ donation process. The UAGA was enacted 5 in 1968 following the first successful heart transplant and was revised 6 in 1987 and 2006 to clarify consent rules and other processes. While New 7 York has made recent improvements to its organ donation registry and 8 processes, it still faces a severe organ shortage. It is estimated that 9 bringing New York's anatomical gift consent rules alone into agreement 10 with the UAGA would result in increased numbers of organ donors and 11 would save lives through transplantation. Provisions of this act should 12 not be construed to interfere with a potential donor's recorded intent EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11680-07-9A. 7800--A 2 1 to make a whole body donation in instances where the potential donor's 2 body is suitable for such donation at death, nor does the gift of a 3 whole body preclude donation for transplant, unless such use is express- 4 ly refused by the donor or the authorizing party. 5 § 2. Short title. This act shall be known and may be cited as the "New 6 York Gift Act". 7 § 3. This act enacts into law changes to the anatomical gift process. 8 Each component is wholly contained within a Part identified as Parts A 9 through G. The effective date for each particular provision contained 10 within such Part is set forth in the last section of such Part. Any 11 provision in any section contained within a Part, including the effec- 12 tive date of the Part, which makes a reference to a section "of this 13 act", when used in connection with that particular component, shall be 14 deemed to mean and refer to the corresponding section of the Part in 15 which it is found. Sections four and five of this act set forth the 16 severability and the general effective dates of this act, respectively. 17 PART A 18 Section 1. Section 4300 of the public health law, as added by chapter 19 466 of the laws of 1970, is amended to read as follows: 20 § 4300. Definitions. As used in this [section] article, the following 21 terms shall have the following meanings: 22 1. ["Bank or storage facility" means a hospital, laboratory or other23facility licensed or approved under the laws of any state for storage of24human bodies or parts thereof, for use in medical education, research,25therapy, or transplantation to individuals] "Anatomical gift" or "gift" 26 means a donation of a whole body or part of a human body, to take effect 27 after the donor's death, for the purpose of transplantation, therapy, 28 research or education. 29 2. "Decedent" means a deceased individual of any age [and] whose body 30 or part is or may be the source of an anatomical gift. The term includes 31 a stillborn infant [or] and, subject to restrictions imposed by law 32 other than this article, a fetus. 33 3. "Disinterested witness" means a witness other than the spouse, 34 domestic partner, child, parent, sibling, grandchild, grandparent, or 35 guardian of the individual who makes, amends, revokes, or refuses to 36 make an anatomical gift, or a close friend, or another adult who is 37 related to the decedent by blood, marriage, or adoption. 38 4. "Document of gift" means an organ donor card, whole body organ 39 donor card, driver's license authorization to make an anatomical gift, 40 pursuant to paragraph (a) of subdivision one of section five hundred 41 four of the vehicle and traffic law, authorization to make an anatomical 42 gift pursuant to any of the methods in subdivision five of section 43 forty-three hundred ten of this article, or any other written authori- 44 zation for an anatomical gift. The term "document of gift" includes a 45 statement on a driver's license, identification card, enrollment in a 46 donor registry, or any other anatomical gift document valid pursuant to 47 the laws of this or any other state. 48 5. "Domestic partner" has the same meaning as described in subdivision 49 seven of section twenty-nine hundred ninety-four-a of this chapter. 50 6. "Donee" means an individual or entity authorized to accept an 51 anatomical gift pursuant to section forty-three hundred two of this 52 article. 53 7. "Donor" means an individual [who makes a gift of all or part of54his] whose body or part is the subject of an anatomical gift.A. 7800--A 3 1 [4.] 8. "Eye bank" means a person that is licensed, accredited, or 2 regulated under federal or state law to engage in the recovery, screen- 3 ing, testing, processing, storage, or distribution of human eyes or 4 portions of human eyes. 5 9. "Guardian" means a person appointed by a court to make decisions 6 regarding the support, care, education, health, or welfare of an indi- 7 vidual. The term does not include a guardian ad litem. 8 10. "Hospital" means a hospital licensed, accredited, or approved 9 under the laws of any state and includes a hospital operated by the 10 United States Government, a state, or a subdivision thereof, although 11 not required to be licensed under state laws. 12 [5.] 11. "Human paired organ donation" means the donation and receipt 13 of human organs under the following circumstances: 14 (a) An individual (referred to in this subdivision as the "first 15 donor") desires to make a living donation of a human organ specifically 16 to a particular patient (referred to in this subdivision as "first 17 patient"), but such donor is biologically incompatible as a donor for 18 such patient. 19 (b) A second individual (referred to in this subdivision as the 20 "second donor") desires to make a living donation of a human organ 21 specifically to a second particular patient (referred to in this subdi- 22 vision as the "second patient"), but such donor is biologically incom- 23 patible as a donor for such patient. 24 (c) Subject to paragraph (d) of this subdivision, the first donor is 25 biologically compatible as a donor of a human organ for the second 26 patient, and the second donor is biologically compatible as a donor of a 27 human organ for the first patient. 28 (d) If there is any additional donor-patient pair as described in 29 paragraph (a) or (b) of this subdivision, each donor in the group of 30 donor-patient pairs is biologically compatible as a donor of a human 31 organ for a patient in such group. 32 (e) All donors and patients in the group of donor-patient pairs 33 (whether two pairs, or more than two pairs) enter into a single agree- 34 ment to donate and receive such human organs, respectively, according to 35 such biological compatibility in the group. 36 (f) Other than as described in paragraph (e) of this subdivision, no 37 valuable consideration is knowingly acquired, received, or otherwise 38 transferred with respect to the human organs referred to in such para- 39 graph. 40 12. "Non-transplant anatomic bank" means any person or facility that 41 solicits, retrieves, performs donor selection and/or testing, preserves, 42 transport, allocates, distributes, acquires, processes, stores, or 43 arranges for the storage of non-transplant anatomic parts, including 44 whole bodies, body segments, organs, or tissues from living or deceased 45 donors, for education and/or research purposes specifically authorized 46 by section forty-three hundred two of this article. The following shall 47 not constitute a non-transplant anatomic bank: 48 (a) Any person or entity that stores non-transplant anatomic parts, 49 except whole bodies and body segments, solely for purposes of research 50 and/or education conducted by such person; provided the person or entity 51 maintains on its premises a properly executed anatomical gift consent 52 document, and 53 (i) such person or entity is a legal donee pursuant to section forty- 54 three hundred two of this article and obtains all organs/tissues from a 55 tissue bank or non-transplant anatomic bank licensed by the department; 56 orA. 7800--A 4 1 (ii) is a general hospital conducting pathology services or research 2 on non-transplant anatomic parts including whole bodies, recovered from 3 within the facility from a living or deceased source; 4 (b) Any person or entity whose activities within the state of New York 5 are limited to distribution of non-transplant anatomic parts to a tissue 6 bank or non-transplant anatomic bank licensed by the department; 7 (c) Any person or entity that uses prepared slides and/or human-der- 8 ived stem cell lines for purposes of education and/or research; and 9 (d) An employee of the federal government, provided an anatomical gift 10 consent document has been executed in accordance with section forty- 11 three hundred one of this article. 12 13. "Organ procurement organization" means a person designated by the 13 secretary of the United States Department of Health and Human Services 14 as an organ procurement organization. 15 14. "Parent" means a parent whose parental rights have not been termi- 16 nated. 17 15. "Part" of a body means and includes organs, tissues, eyes, bones, 18 arteries, blood, other fluids and other portions of a human body, and 19 "part" includes "parts". The term does not include the whole body. 20 [6.] 16. "Person" means an individual, corporation, government or 21 governmental subdivision or agency, business trust, estate, trust, part- 22 nership or association, or any other legal entity. 23 [7.] 17. "Physician" or "surgeon" means a physician or surgeon 24 licensed or authorized to practice under the laws of any state. 25 [8.] 18. "Prospective donor" means an individual who is dead or near 26 death and has been determined by a procurement organization to have a 27 part that could be medically suitable for transplantation, therapy, 28 research, or education. The term does not include an individual who has 29 made a refusal. 30 19. "Procurement organization" means an eye bank, organ procurement 31 organization, or tissue bank. 32 20. "Reasonably available" means able to be contacted by a procurement 33 organization without undue effort and willing and able to act in a time- 34 ly manner consistent with existing medical criteria necessary for the 35 making of an anatomical gift. 36 21. "Record" means information that is inscribed on a tangible medium 37 or that is stored in an electronic or other medium and is retrievable in 38 perceivable form. 39 22. "Refusal" means a record created under section forty-three hundred 40 five of this article that expressly states an intent to bar other 41 persons from making an anatomical gift. 42 23. "State" includes any state, district, commonwealth, territory, 43 insular possession, and any other area subject to the legislative 44 authority of the United States of America. 45 24. "Tissue bank" means a person that is licensed, accredited, or 46 regulated under federal or state law to solicit, retrieve, perform donor 47 selection and/or testing, preserve, transport, allocate, distribute, 48 acquire, process, store or arrange for the storage of human tissues for 49 transplantation, transfer, therapy, artificial insemination or implanta- 50 tion, including autogeneic procedures. 51 25. "Whole body" means the intact corporeal remains of an individual 52 after the time of death. 53 26. "Whole body donor card" means a card or other writing indicating 54 the donor's authorization to make an anatomical gift of a whole body to 55 a non-transplant anatomic bank or other donee for purposes of education 56 or research.A. 7800--A 5 1 § 2. This act shall take effect immediately. 2 PART B 3 Section 1. Section 4301 of the public health law, as amended by chap- 4 ter 348 of the laws of 2009, subdivision 1 as amended by chapter 248 of 5 the laws of 2016, is amended to read as follows: 6 § 4301. Persons who may execute an anatomical gift. 1. (a) Any indi- 7 vidual of sound mind and eighteen years of age or more may [give all or8any part of his or her body] make an anatomical gift to take effect upon 9 their death for any purpose specified in section forty-three hundred two 10 of this article, [the gift to take effect upon death] limit an anatom- 11 ical gift to one or more of those purposes, or refuse to make an anatom- 12 ical gift. In any case where the donor has a properly executed [an organ13donor card, driver's license authorization to make an anatomical gift,14pursuant to paragraph (a) of subdivision one of section five hundred15four of the vehicle and traffic law, registered in the New York state16organ and tissue donor registry under section forty-three hundred ten of17this article, or has otherwise given written authorization for organ or18tissue donation,] document of gift authorization for donation shall not 19 be rescinded [by an objection by a member of any of the classes speci-20fied in paragraphs (a) through (h) of subdivision two of this section,] 21 or amended by any other person except upon a showing that the donor 22 revoked the authorization pursuant to section forty-three hundred five 23 of this article. 24 (b) Any person who is sixteen or seventeen years of age and of sound 25 mind may [give all or any part of his or her body] make an anatomical 26 gift to take effect upon their death for any purpose specified in 27 section forty-three hundred two of this article, [the gift to take28effect upon death] limit an anatomical gift to one or more of those 29 purposes, or refuse to make an anatomical gift. In any case where the 30 donor has a properly executed [an organ donor card, driver's license31authorization to make an anatomical gift, pursuant to paragraph (a) of32subdivision one of section five hundred four of the vehicle and traffic33law, or has otherwise given written authorization for organ or tissue34donation] document of gift, notice of such gift shall be provided to the 35 donor's parents or [legal] guardians, and authorization for donation may 36 be rescinded or amended by an objection by a parent or [legal] guardian 37 of the donor at the time of death and prior to the recovery of any organ 38 or tissue if the donor is less than eighteen years of age. An anatomical 39 gift made by an individual more than sixteen years of age but less than 40 eighteen shall otherwise not be rescinded, except upon a showing that 41 the donor revoked the authorization pursuant to section forty-three 42 hundred five of this article. Upon the donor reaching the age of eigh- 43 teen, the donor's consent to donate his or her organs or tissue shall be 44 regarded as consent for authorization to make an anatomical gift pursu- 45 ant to paragraph (a) of this subdivision. 46 (c) In the absence of an express, contrary indication by the donor, an 47 anatomical gift of a part is neither a refusal to give other parts nor a 48 limitation on an individual's ability to make an anatomical gift under 49 subdivision two of this section. 50 2. [Any of the following persons, in the order of priority stated,51may, when persons in prior classes are not reasonably available, will-52ing, and able to act, at the time of death, and in the absence of actual53notice of contrary indications by the decedent, or actual notice of54opposition by a member of the same class or prior class specified inA. 7800--A 6 1paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision,2or reason to believe that] (a) In the absence of a gift made by the 3 donor under subdivision one of this section, and in the absence of actu- 4 al notice of contrary indications by the decedent, including religious 5 or moral objections, an anatomical gift [is contrary to the decedent's6religious or moral beliefs, give all or any part] of the decedent's body 7 may be made by any member of the following classes of persons who is 8 reasonably available, in the order of priority listed, for any purpose 9 specified in section forty-three hundred two of this article: 10 [(a)] (i) the person designated as the decedent's health care agent 11 under article twenty-nine-C of this chapter, subject to any written 12 statement in the health care proxy form, 13 [(b)] (ii) the person designated as the decedent's agent in a written 14 instrument under article forty-two of this chapter, subject to any writ- 15 ten statement in the written instrument, 16 [(c)] (iii) the spouse, if not legally separated from the patient, or 17 the domestic partner, 18 [(d)] (iv) a son or daughter eighteen years of age or older, 19 [(e)] (v) either parent, 20 [(f)] (vi) a brother or sister eighteen years of age or older, 21 [(g)] (vii) an adult grandchild of the decedent, 22 (viii) a grandparent of the decedent, 23 (ix) a guardian of the person of the decedent at the time of his or 24 her death, or 25 [(h)] (x) any other person authorized or under the obligation to 26 dispose of the body. 27 (b) If there is more than one member of a class listed in subparagraph 28 (iv), (vi), (vii), or (viii) of paragraph (a) of this subdivision enti- 29 tled to make an anatomical gift, an anatomical gift may be made by a 30 member of the class unless that member or person knows of an objection 31 by another member of the class. If an objection is known, the gift may 32 be made only by a majority of the members of the class who are reason- 33 ably available. 34 3. [For the purposes of this section, "reasonably available" means35that a person to be contacted can be contacted without undue effort and36willing and able to act in a timely manner consistent with existing37medical criteria necessary for the making of an anatomical gift.384. For the purposes of this section, "domestic partner" means a person39who, with respect to another person:40(a) is formally a party in a domestic partnership or similar relation-41ship with the other person, entered into pursuant to the laws of the42United States or any state, local or foreign jurisdiction, or registered43as the domestic partner of the person with any registry maintained by44the employer of either party or any state, municipality, or foreign45jurisdiction; or46(b) is formally recognized as a beneficiary or covered person under47the other person's employment benefits or health insurance; or48(c) is dependent or mutually interdependent on the other person for49support, as evidenced by the totality of the circumstances indicating a50mutual intent to be domestic partners including but not limited to:51common ownership or joint leasing of real or personal property; common52householding, shared income or shared expenses; children in common;53signs of intent to marry or become domestic partners under paragraph (a)54or (b) of this subdivision; or the length of the personal relationship55of the persons.A. 7800--A 7 1Each party to a domestic partnership shall be considered to be the2domestic partner of the other party. "Domestic partner" shall not3include a person who is related to the other person by blood in a manner4that would bar marriage to the other person in New York state. "Domestic5partner" shall also not include any person who is less than eighteen6years of age or who is the adopted child of the other person or who is7related by blood in a manner that would bar marriage in New York state8to a person who is the lawful spouse of the other person.] An anatomical 9 gift may not be made by a person listed in subdivision two of this 10 section if: 11 (a) a person in a prior class is reasonably available; 12 (b) the person proposing to make an anatomical gift knows of a refusal 13 or contrary indications by the decedent, including that an anatomical 14 gift is contrary to the decedent's religious or moral beliefs. 15 4. Any gift by a person designated in subdivision two of this section 16 shall be by a document signed by him or her or made by his or her tele- 17 graphic, recorded telephonic, or other recorded message. Where a gift is 18 made under this subdivision, either: (a) the authorizing party shall 19 indicate in the document or message that he or she has no actual notice 20 of contrary indications by the decedent and no reason to believe that an 21 anatomical gift is contrary to the decedent's religious or moral 22 beliefs; or (b) an agent of the federally designated organ procurement 23 organization or of the donee shall make reasonable efforts to inquire of 24 the authorizing party or otherwise determine that the authorizing party 25 has no actual notice of contrary indications by the decedent and no 26 reason to believe that an anatomical gift is contrary to the decedent's 27 religious or moral beliefs. 28 5. The donee shall not accept the gift under the following circum- 29 stances: 30 (a) the donee has actual notice of contrary indication by the dece- 31 dent; 32 (b) where [the donor has not properly executed an organ donor card,33driver's license authorization to make] an anatomical gift[, pursuant to34paragraph (a) of subdivision one of section five hundred four of the35vehicle and traffic law, registered in the New York state organ and36tissue donor registry under section forty-three hundred ten of this37article, or otherwise given written authorization for organ or tissue38donation, or has revoked any such authorization, and the gift is opposed39by a person or persons in the highest priority available of the classes40specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of41subdivision two of] is not properly made pursuant to this section; or 42 (c) the donee has reason to believe that an anatomical gift is contra- 43 ry to the decedent's religious or moral beliefs. 44 6. A gift of all or part of a body authorizes any examination neces- 45 sary to assure medical acceptability of gift for the purposes intended. 46 7. The rights of the donee created by the gift are paramount to the 47 rights of others except as provided by section forty-three hundred eight 48 of this article. 49 8. The person who documents the making, amending or revoking of an 50 anatomical gift, acting reasonably and in good faith in accordance with 51 this article, may accept an anatomical gift under this article made by a 52 person who represents that he or she is entitled to consent to the 53 donation. 54 § 2. Section 4305 of the public health law, as added by chapter 466 of 55 the laws of 1970, is amended to read as follows:A. 7800--A 8 1 § 4305. [Revocation] Amendments or revocation of the gift. 1. [If the2will, card, or other document or executed copy thereof has been deliv-3ered to a specified donee, the donor] An individual who has created a 4 document of gift may amend or revoke the gift by: 5 (a) [the execution and delivery to the donee of a signed statement,] a 6 record signed by: 7 (i) the donor; 8 (ii) another person authorized to make the anatomical gift; or 9 (iii) another individual acting at the direction of the donor or other 10 person authorized to make the anatomical gift if those individuals are 11 physically unable to sign; or 12 (b) an oral statement of revocation made in the presence of two 13 persons, [communicated to the donee,] at least one of whom is a disin- 14 terested witness; or 15 (c) a later-executed document of gift that amends or revokes a previ- 16 ous anatomical gift or portion of an anatomical gift either expressly or 17 by inconsistency; or 18 (d) a statement during a terminal illness or injury addressed to an 19 attending physician and communicated to the donee[,]; or 20 [(d)] (e) a signed card or document, found on [his] the prospective 21 donor's person or in [his] the prospective donor's effects; or 22 (f) the individual's will, whether or not the will is admitted to 23 probate or invalidated after the individual's death. 24 2. (a) Subject to paragraphs (b) and (c) of this subdivision, an indi- 25 vidual authorized to make an anatomical gift pursuant to subdivision two 26 of section forty-three hundred one of this article may revoke or amend 27 such gift by: 28 (i) a record signed by the donor; or 29 (ii) an oral statement of revocation made in the presence of two 30 persons, at least one of whom is a disinterested witness; or 31 (iii) a later-executed document of gift that amends or revokes a 32 previous anatomical gift or portion of an anatomical gift, either 33 expressly or by inconsistency. 34 (b) If more than one member of a class listed in subparagraph (iv), 35 (vi), (vii), or (viii) of paragraph (a) of subdivision two of section 36 forty-three hundred one of this article is reasonably available, a gift 37 made pursuant to subdivision two of section forty-three hundred one of 38 this article may be amended only if a majority of the reasonably avail- 39 able members agree to the amending of the gift, or revoked only if a 40 majority of the reasonably available members agree to the revoking of 41 the gift or if they are equally divided as to whether to revoke the 42 gift. 43 (c) A revocation is effective only if, before an incision has been 44 made to remove a part from the donor's body or before invasive proce- 45 dures have begun to prepare the recipient, the procurement organization, 46 transplant hospital, or physician or technician knows of the revocation. 47 3. Any document of gift [which has not been delivered to the donee] 48 may be revoked in the manner set out in subdivision one or two of this 49 section or by destruction, cancellation, or mutilation of the document 50 and all executed copies thereof. 51 [3.] 4. Any gift made by a will may be revoked or amended in the 52 manner provided for revocation or amendment of wills or as provided in 53 subdivision one of this section. 54 5. In the absence of contrary indications by the donor, a revocation 55 or amendment of an anatomical gift is not a refusal to make another 56 anatomical gift, either by the prospective donor or another person spec-A. 7800--A 9 1 ified in subdivision two of section forty-three hundred one of this 2 article. 3 § 3. Article 43-A of the public health law is REPEALED. 4 § 3-a. Subdivision 5 of section 4303 of the public health law is 5 REPEALED. 6 § 4. This act shall take effect on the one hundred eightieth day after 7 it shall have become a law. Effective immediately, the addition, amend- 8 ment and/or repeal of any rule or regulation necessary for the implemen- 9 tation of this act on its effective date are authorized to be made and 10 completed on or before such effective date. 11 PART C 12 Section 1. Section 4302 of the public health law is REPEALED and a new 13 section 4302 is added to read as follows: 14 § 4302. Uses and dispositions of anatomical gifts. 1. All anatomical 15 gifts made under this article may be made to the following persons named 16 in the document of gift: 17 (a) a hospital; accredited medical school, dental school, college or 18 university; organ procurement organization; non-transplant anatomic 19 bank; or other appropriate person, for research or education; 20 (b) subject to the provisions of subdivision two of this section, an 21 individual designated by the person making the anatomical gift if the 22 individual is the recipient of that part; if an anatomical gift to an 23 individual under this paragraph cannot be transplanted into the individ- 24 ual, the part passes in accordance with subdivision six of this section 25 in the absence of an express, contrary indication by the authorizing 26 party making the anatomical gift; or 27 (c) an eye bank or tissue bank. 28 2. If an anatomical gift of one or more specific parts or of all parts 29 is made in a document of gift that does not name a person described in 30 subdivision one of this section, but identifies the purpose for which an 31 anatomical gift may be used, the following rules apply: 32 (a) If the part is an eye and the gift is for the purpose of trans- 33 plantation or therapy, the gift passes to the appropriate eye bank. 34 (b) If the part is tissue and the gift is for the purpose of trans- 35 plantation or therapy, the gift passes to the appropriate tissue bank. 36 (c) If the part is an organ and the gift is for the purpose of trans- 37 plantation or therapy, the gift passes to the appropriate organ procure- 38 ment organization as custodian of the organ. 39 (d) If the part is an organ, eye, or tissue and the gift is for the 40 purpose of research or education, the gift passes to the appropriate 41 procurement organization. 42 3. For the purposes of subdivision two of this section, if there is 43 more than one purpose of an anatomical gift set forth in the document of 44 gift but the purposes are not set forth in any priority, the gift must 45 be used for transplantation or therapy, if suitable. If the gift cannot 46 be used for transplantation or therapy, the gift may be used for 47 research or education. 48 4. If an anatomical gift of one or more specific parts is made in a 49 document of gift that does not name a person described in subdivision 50 one of this section and does not identify the purpose of the gift, the 51 gift may be used only for transplantation or therapy, and the gift pass- 52 es in accordance with subdivision six of this section. 53 5. If a document of gift specifies only a general intent to make an 54 anatomical gift by words such as "donor", "organ donor" or "body donor",A. 7800--A 10 1 or by a symbol or statement of similar import, the gift may be used only 2 for transplantation or therapy, and the gift passes in accordance with 3 subdivision six of this section. 4 6. For purposes of subdivisions four, five and paragraph (b) of subdi- 5 vision one of this section, the following rules apply: 6 (a) If the part is an eye, the gift passes to the appropriate eye 7 bank. 8 (b) If the part is tissue, the gift passes to the appropriate tissue 9 bank. 10 (c) If the part is an organ, the gift passes to the appropriate organ 11 procurement organization as custodian of the organ. 12 7. An anatomical gift of an organ for transplantation or therapy, 13 other than an anatomical gift under paragraph (b) of subdivision one of 14 this section, passes to the organ procurement organization as custodian 15 of the organ. 16 8. If a potential donor has been referred to a procurement organiza- 17 tion or tissue bank pursuant to state or federal law, and the procure- 18 ment organization has determined that the gift is medically unsuitable 19 for transplant, or to the extent that a non-transplant anatomical gift 20 may still be honored after a gift has been made pursuant to a supersed- 21 ing document of gift, then the procurement organization shall make 22 reasonable efforts to determine whether the donor has previously made a 23 gift of his or her body or parts for education or research, and the 24 procurement organization informed of such gift shall notify the non- 25 transplant anatomic bank of the gift consistent with the donor's intent. 26 9. If an anatomical gift does not pass pursuant to subdivisions one, 27 two, three, four, five, six or seven of this section or the decedent's 28 body or part is not used for transplantation, therapy, research, or 29 education, custody of the body or part passes to the person under obli- 30 gation to dispose of the body or part. 31 10. A person may not accept an anatomical gift if the person knows 32 that the gift was not effectively made under section forty-three hundred 33 one or forty-three hundred five of this article or if the person knows 34 that the decedent made a refusal under section forty-three hundred one 35 of this article that was not revoked. For purposes of this subdivision, 36 if a person knows that an anatomical gift was made on a document of 37 gift, the person is deemed to know of any amendment or revocation of the 38 gift or any refusal to make an anatomical gift on the same document of 39 gift. 40 11. Except as otherwise provided in paragraph (b) of subdivision one 41 of this section, nothing in this section affects the allocation of 42 organs for transplantation or therapy. 43 § 2. This act shall take effect on the one hundred eightieth day after 44 it shall have become a law. Effective immediately, the addition, amend- 45 ment and/or repeal of any rule or regulation necessary for the implemen- 46 tation of this act on its effective date are authorized to be made and 47 completed on or before such effective date. 48 PART D 49 Section 1. Section 4304 of the public health law, as added by chapter 50 466 of the laws of 1970, is amended to read as follows: 51 § 4304. Delivery of document of gift. If the gift is made by the donor 52 to a specified donee, the will, card or other document or [an executed] 53 a copy thereof, may be delivered to him or her to expedite the appropri- 54 ate procedures immediately after death; however delivery is not neces-A. 7800--A 11 1 sary to the validity of the gift. [The will, card or other document, or2an executed copy thereof, may be deposited in any hospital, bank, stor-3age facility or registry office that accepts it for safekeeping or for4facilitation of procedures after death.] On request of an interested 5 party upon or after the donor's death, the person in possession shall 6 produce the document for examination. 7 § 2. This act shall take effect immediately. 8 PART E 9 Section 1. Subdivisions 1, 3 and 4 of section 4306 of the public 10 health law, subdivisions 1 and 3 as added by chapter 466 of the laws of 11 1970, and subdivision 4 as added by chapter 589 of the laws of 1990, are 12 amended to read as follows: 13 1. The donee may accept or reject the gift. If the donee accepts a 14 gift of the entire body, he or she may, subject to the terms of the 15 gift, authorize embalming and the use of the body in funeral services. 16 If the gift is of a part of the body, the donee upon the death of the 17 donor and prior to embalming, may cause the part to be removed without 18 unnecessary mutilation. After removal of the part, custody of the 19 remainder of the body vests in the surviving spouse, next of kin, or 20 other persons under obligation to dispose of the body. 21 3. (a) A person who acts in good faith in accord with the terms of 22 this article or with the anatomical gift laws of another [state] juris- 23 diction is not liable for damages in any civil action or subject to 24 prosecution in any criminal proceeding for his or her act. 25 (b) A person who documents the making, amending or revoking of an 26 anatomical gift, acting reasonably and in good faith in accordance with 27 this article, may accept an anatomical gift under this article made by a 28 person who represents that he or she is entitled to consent to the 29 donation. 30 (c) An entity under section forty-three hundred two or forty-three 31 hundred ten of this article or a health care professional, or an agent 32 or employee thereof, who or which documents, records, recovers, 33 procures, obtains, or utilizes an organ or tissue in reasonable and good 34 faith reliance on information provided to or contained in the New York 35 state donate life registry shall not be liable in any civil or criminal 36 action or proceeding for action based on such reliance. 37 4. [At the time of acceptance of the gift, when it is known that the38donation will be used for other than transplantation purposes, the donee39if requested by the donor or the donor's next of kin shall advise the40donor or the donor's next of kin of the body parts to be utilized, the41uses to which the body parts may be put, whether body parts may be42transferred to other facilities or institutions and plans for the ulti-43mate disposition of all body parts if the donor has not specified the44ultimate disposition.] Any employee or agent of a federally designated 45 organ procurement organization, eye bank or tissue bank acting pursuant 46 to this article shall be held to the same standard of confidentiality as 47 that imposed on employees of a hospital. 48 § 2. This act shall take effect immediately and shall apply only to 49 acts occurring on or after such effective date. Effective immediately, 50 the addition, amendment and/or repeal of any rule or regulation neces- 51 sary for the implementation of this act on its effective date are 52 authorized to be made and completed on or before such effective date. 53 PART FA. 7800--A 12 1 Section 1. The public health law is amended by adding a new section 2 4306-a to read as follows: 3 § 4306-a. Advanced directives and health care proxies. 1. If a patient 4 in a hospital has a declaration or advance health care directive or 5 proxy document pursuant to article twenty-nine-C of this chapter, and 6 terms of the declaration, directive or proxy document concerning life- 7 sustaining treatment are in conflict with the express or implied terms 8 of a potential anatomical gift with regard to the administration of 9 measures necessary to ensure the medical suitability of a part for tran- 10 splantation or therapy, the prospective donor's attending physician and 11 the prospective donor shall confer to resolve the conflict. 12 2. If such prospective donor is incapable of resolving the conflict, 13 and the patient in such declaration, directive, or proxy document did 14 not expressly reject being a donor, then the health care proxy acting 15 under the prospective donor's declaration, directive, or proxy or, if 16 none, a surrogate authorized to make health care decisions on behalf of 17 the patient, in accordance with the provisions of article twenty-nine-CC 18 of this chapter, shall act for the patient to resolve the conflict. 19 3. Such conflict must be resolved expeditiously. Information relevant 20 to the resolution of the conflict may be obtained from the appropriate 21 procurement organization and any other person authorized to make an 22 anatomical gift for the prospective donor described in subdivision two 23 of section forty-three hundred one of this article. Before resolution of 24 the conflict, measures necessary to ensure the medical suitability of 25 the part may not be withheld or withdrawn from the patient if withhold- 26 ing or withdrawing the measures is not contraindicated by appropriate 27 end-of-life care. 28 § 2. The public health law is amended by adding a new section 4306-b 29 to read as follows: 30 § 4306-b. Withdrawal of life-sustaining treatment. This section 31 applies in cases where a prospective donor who has made an anatomical 32 gift or whose donation status has not been ascertained is in a hospital. 33 The hospital shall not withdraw any measures that are necessary to main- 34 tain the medical suitability of the part until the procurement organiza- 35 tion has had the opportunity to advise the applicable persons as set 36 forth in section forty-three hundred one of this article of the option 37 to make an anatomical gift, has documented or acted upon that decision, 38 or has ascertained that the individual expressed a contrary intent. The 39 procurement organization shall act expeditiously with respect to its 40 responsibilities under this section. 41 § 3. This act shall take effect on the one hundred eightieth day after 42 it shall have become a law. Effective immediately, the addition, amend- 43 ment and/or repeal of any rule or regulation necessary for the implemen- 44 tation of this act on its effective date are authorized to be made and 45 completed on or before such effective date. 46 PART G 47 Section 1. Subdivision 1 of section 4307 of the public health law, as 48 amended by chapter 362 of the laws of 2009, is amended to read as 49 follows: 50 1. It shall be unlawful for any person to knowingly acquire, receive, 51 or otherwise transfer for valuable consideration any [human organ] part 52 for use in human transplantation. [The term human organ means the human53kidney, liver, heart, lung, bone marrow, and any other human organ or54tissue as may be designated by the commissioner but shall excludeA. 7800--A 13 1blood.] The term "valuable consideration" does not include the reason- 2 able payments associated with the removal, transportation, implantation, 3 processing, preservation, quality control, and storage of a [human4organ] part or the expenses of travel, housing, and lost wages incurred 5 by the donor of a human organ in connection with the donation of the 6 organ or human paired organ donation. Any person who violates this 7 section shall be guilty of a class E felony. 8 § 2. This act shall take effect immediately. 9 § 4. Severability. If any provision of this act, or any application of 10 any provision of this act, is held to be invalid, or to violate or be 11 inconsistent with any federal law or regulation, that shall not affect 12 the validity or effectiveness of any other provision of this act, or of 13 any other application of any provision of this act, which can be given 14 effect without that provision or application; and to that end, the 15 provisions and applications of this act are severable. 16 § 5. This act shall take effect immediately provided, however, that 17 the applicable effective date of Parts A through G of this act shall be 18 as specifically set forth in the last section of such Parts.
